Academic journal article The University of Memphis Law Review

Equal Justice for Same-Sex Married Couples: Reflections by a Tennessee Lawyer Who Helped Achieve National Marriage Equality

Academic journal article The University of Memphis Law Review

Equal Justice for Same-Sex Married Couples: Reflections by a Tennessee Lawyer Who Helped Achieve National Marriage Equality

Article excerpt

I. INTRODUCTION 175

II. BACKGROUND & UNITED STATES V. WINDSOR 178

III. MARRIAGE EQUALITY IN TENNESSEE 183

A. Finding Plaintiffs and Filing in District Court 184

B. The Sixth Circuit 190

C. Supreme Court 195

1. Preparing for the Supreme Court 197

2. Oral Argument 199

VI. DECISION 201

I. INTRODUCTION

Listening to Justice Kennedy read his majority decision summary in Obergefell v. Hodges' is an experience and feeling housed in that mind-space preserved for life-time achievements and life-changing moments. It is June 26, 2015, and sitting next to me in the courtroom of the Supreme Court of the United States ("Supreme Court" or "Court") is another attorney on the case, Douglas Hallward-Driemeier.2 I am in the first row (middle left, facing the bench) of seats reserved for Supreme Court attorneys associated with the case. Partially in front of me and slightly left is another row with seats, closest is attorney Mary Bonauto.3 Justice Kennedy with great eloquences begins and a hush and stillness takes over the courtroom. We already know a significant decision has been made and was to be read when retired Justice John Paul Stevens4 entered the Courtroom a few minutes before the nine justices and took a seat in the dignitary section, a row of reserved seats on the right side of the courtroom facing the lawyers and the bench.5 Excitement mixed with trepidation fills the air, and we are held at attention as Justice Kennedy reads for the majority.6 At first those present are not sure the expanse of this decision, but soon it is evident the ruling is landmark. Justice Kennedy reads with deliberate clarity and a tempo reminiscent of poetry; lawyers begin to cry-quietly, but audibly-as the fight for equality has found acceptance and protection in the Constitution.

My experiences as one of the Tennessee attorneys on this monumental case joins other personal memories in that special memory-space for life-changing events: the sight and sounds of my children when they entered my life; my first trip to Paris when I walked out of the subway station to the iconic Eiffel Tower; standing on the front steps of my first house viewing the sunset over the small lake; and hearing my wife say all five of my names during our wedding vows on a boat in Lake Champlain.7 Thereto are professional accomplishments carefully preserved in my memory: walking across the stage to receive my law school diploma, my work as Chair of the Labor & Employment Law Section of the Memphis Bar Association and President of the local chapter of the Federal Bar Association; being interviewed for numerous publications including the American Bar Association Journal9 about practicing law in a problem-solving style known as holistic law, and on a lighter note, being the focus of the center article in the Memphis Health and Fitness magazine sporting my tattoo of the scales of justice (a proud moment given my then 51 years of age).11

These professional events are now a distant second to what has become my life over the past two years. Now at the forefront of my professional accomplishments is my time working on the Supreme Court case that created opportunity and recognition for all same-sex couples married in the United States: the opportunity and constitutionally protected right for same-sex couples to marry in any of the fifty states and the requirement under the Fourteenth Amendment that each state recognize same-sex marriages for those couples previously married in other states. That case, Obergefell v. Hodges,2 began in Tennessee as Tanco v. Haslam}3 and that is the story I want to share.

II. Background & United States v. Windsor

There is no difference between same- and oppositesex couples with respect to this principle [that marriage is fundamental], yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. …

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