Moments after the Supreme Court made marriage equality the law of the land with its 5-4 ruling in Obergefell v. Hodges, Ijpe DeKoe stepped outside the Court with his husband, Thom Kostura, to the joyous scene of thousands of supporters chanting, “Love must win.”
The jubilation DeKoe, Kostura, and countless others across America experienced on June 26, 2015, came after almost two years of legal strategizing, numerous court battles, and much uncertainty about whether the Supreme Court would hear their case, the couple and two of their attorneys told Professor Robin Lenhardt’s Constitutional Law class on March 29.
DeKoe and Kostura, who legally wed in New York in 2011, were among the original four same-sex Tennessee couples who participated in Tanco v. Haslam, to have the state recognize marriages that occurred elsewhere. Originally filed in U.S. District Court in October 2013, Tanco v. Haslam later became one of four cases at the heart of Obergefell, a Supreme Court case that included suits from Kentucky, Michigan, and Ohio, as well as 32 plaintiffs and 48 lawyers.
The couple and two of their Tennessee-based attorneys, Maureen Holland and Abby Rubenfeld, shared insight with Professor Lenhardt’s class on how and why they became involved with the suit, the factors that made DeKoe and Kostura excellent plaintiffs, the legal strategies that propelled the case through the courts, and their individual reactions to the Supreme Court ruling.
Today, DeKoe and Kostura live in New Jersey, where DeKoe is stationed as a Sergeant First Class in the Army Reserves. One of Lenhardt’s students, Jacob Samuels-Kalow, served with DeKoe in Afghanistan and suggested to the professor that his fellow soldier would be willing to speak in-person with the class.
Almost 80 1L students are enrolled in the class, which Lenhardt billed at the outset as an “opportunity to talk and engage directly with people who have changed our nation.”
The Supreme Court’s Obergefell ruling, particularly Justice Anthony Kennedy’s majority opinion, validated same-sex relationships that in prior decades were treated with open scorn in courts across America, Rubenfeld said.
“To have come this far—the way we were treated by the law and to win—was beyond wonderful,” the Nashville-based attorney told the class via phone. Rubenfeld’s Memphis-based cohort, Holland, addressed the class via video call.
The Supreme Court’s 2013 ruling in United States v. Windsor overturned the Defense of Marriage Act and provided married same-sex couples rights to federal benefits. It also provided Rubenfeld, a family law and civil rights attorney for 37 years, something more. In the late Justice Antonin Scalia’s dissent decrying the ruling for paving the way for a national same-sex marriage ruling, she found the inspiration to challenge the legal definition of marriage.
Rubenfeld linked with Knoxville-based attorney Regina Lambert and then Holland, an employment and civil rights lawyer, in the interest of launching a case that would represent Tennessee’s three major geographic regions. The trio next turned its attention to finding a large firm to help with the case (eventually Sherrard & Roe, PLC) and diverse plaintiffs to speak to its widespread significance. They then formed a legal strategy.
When friends suggested DeKoe and Kostura would make good plaintiffs, the couple initially had reservations.
“We’re generally private people,” said Kostura, who was in graduate school as the case progressed through the courts. “Opening our lives is not really our thing but we felt we were obligated to do so.”
“Clients have to bear the burden of opening their lives, hearts, and actual homes to the world,” Holland added. “It takes courageous people to withstand the challenges of getting a lot of negativity.”
DeKoe’s military service played a major role in both his and his husband’s initial interest in the suit and the attorneys’ interest in making them plaintiffs.
“They didn’t just move to Tennessee,” Rubenfeld said. “They were ordered here. That made them excellent plaintiffs.”
The attorneys in Tanco v. Haslam relied on consensus decisions among themselves. From the outset, they decided to limit their argument to a pure recognition case. Only Tennessee residents denied the marriage rights another state had granted them would be included as plaintiffs.
A strategic decision to take the case to federal court followed, the attorneys said. Taking the suit before state courts, attorneys reasoned, would put good judges at risk of being partisan casualties when they next came up for re-election. A good lawyer knows the law, Holland shared with the class, while a great one knows the judge’s previous opinions and articles.
In the Sixth Circuit Court of Appeals in Cincinnati, the state tied its opposition to same-sex marriage to its support for “accidental procreation” between heterosexuals. The state elected not to explain what this had to do with same-sex marriage. As he heard this argument, DeKoe said he got the impression the state’s attorneys did not believe their own argument.
Other challenges to the Supreme Court’s definition of marriage had been filed before Tanco v. Haslam and had been upheld by Circuit courts. Holland and Rubenfeld realized an injunction would make their rulings appealable by either side, placing them on a faster track to the Court.
In March 2014, Tennessee Judge Aleta Trauger granted a preliminary injunction, making the marriage of three couples at the heart of Tanco v. Haslam legally recognizable at this time.
“A lot of our friends saw for the first time they could be married in our state,” DeKoe said.
On November 6, 2014, the Sixth Circuit ruled 2-1 that Tennessee’s ban on same-sex marriage did not violate the Constitution. The Supreme Court wanted a split circuit decision, the attorneys told Lenhardt’s class. Now they had one. Attorneys filed an application for certiorari eight days later. In January 2015, the Supreme Court consolidated the four cases into one.
The Supreme Court wanted arguments on two questions: whether the 14th Amendment allowed states to permit same-sex marriage and whether the same amendment allowed states to recognize marriages from other states.
The Court acknowledged in its decision same-sex couples’ rights to the 14th Amendment Due Process Clause and “glossed over” the Equal Protection Clause, Holland said. The attorneys did not argue that the states named in the suit violated the Constitution’s Full Faith and Credit Clause because the legal precedent did not have the traction of other arguments, she added.
For DeKoe and Kostura, the Court’s legal rationale mattered less than the ruling itself, the implications of which a sea of people outside the Court celebrated minutes after the decision became public.
“It was pretty amazing,” DeKoe recalled of the post-ruling scene outside the Court, noting he understood how rock stars felt on stage as he stared into the face of the euphoric masses.
