12 minute read
A Supreme Effort
Douglass Hallward-Driemeier '89
Two DePauw alumni played key roles in same-sex marriage case that went before the nation’s highest court
By David McKay Wilson
Douglas Hallward-Driemeier ’89 was driving home from his downtown Washington, D.C., law office one evening in early November 2014 when his mobile phone jangled. It was Chris Stoll ’91, his DePauw friend and Harvard Law School classmate.
The 6th U.S. Circuit Court of Appeals had just upheld Tennessee’s refusal to recognize same-sex marriages in an appeal filed by Stoll’s legal team at the National Center for Lesbian Rights (NCLR), where he serves as senior staff attorney. The decision differed with those by other appeals courts across the country. The conflicting opinions begged for resolution before the U.S. Supreme Court.
But time was running short for the 2014-15 term of the nation’s highest court. If the same-sex marriage proponents wanted to seek a hearing, papers had to be filed within seven days. So Stoll turned to Hallward-Driemeier, who, when serving in the U.S. Justice Department, had argued 13 cases before the court. He had appeared two additional times for private clients. “Chris wondered if I was doing anything next week,” recalls Hallward- Driemeier, who leads the Supreme Court and appellate practice at the international law firm Ropes & Gray. “I was on the phone that night with our assignment person. We had an associate who had been following the cases. We jumped in. And then it went fast. It was really crazy.”
Five months later, Hallward-Driemeier was one of two lawyers standing before the nine-judge panel arguing for the rights of same-sex couples to be married. On June 26, the court ruled 5-4 for marriage equality.
“We knew it would be very important to have someone on our team who appeared regularly before the Supreme Court,” Stoll says. “The court trusts these lawyers. It’s very important to have their names on your papers. And if your case gets accepted to be heard, you want them to appear on your behalf.”
The story of these DePauw college friends – and their role in the landmark case, Obergefell v. Hodges – is a tale of legal intrigue, gender politics and the changing face of marriage in the 21st century.
For Stoll, 46, who is gay and has lived with his partner in San Francisco for the past 10 years, it was the high point of a career in nonprofit legal advocacy that gained traction in 2008 when he joined NCLR and became an important player in the national battle for marriage equality.
For Hallward-Driemeier, 48, who is straight and has been married to his wife, Mary, for 19 years, Obergefell solidified his stature among Washington’s elite advocates and made him a hero in the community known as LGBT – those who are lesbian, gay, bisexual and transgender.
He floored a journalist from the online news magazine Slate when, in the midst of a podcast interview, he burst into recitation of a poem by Edwin Markham:
The poem, he said, reflected the view of marriage purported by the state of Michigan, which, by focusing on how traditional marriage was necessary to reinforce the bond between a child and his or her biological parents, was drawing a line in an effort to shut out these plaintiffs.
“That’s the only aspect of marriage that doesn’t apply to same-sex couples,” he said. “The state was drawing a circle that got smaller and smaller to almost a dot of what marriage is. We know in our hearts that marriage is much more than that.”
At DePauw, both Stoll and Hallward- Driemeier majored in political science. They knew each other through classes and their participation in the University’s Honor Scholar program.
Hallward-Driemeier, who had been accepted at Yale and Dartmouth, chose DePauw, following a family tradition in Greencastle that included his father, Doug ’60; aunt, Joan Driemeier Haskin ’64; and sisters, Doni ’86 and Debra ’92. At DePauw, he was awarded the Walker Cup as the Class of ’89 member who had contributed the most to the University community during his or her four years.
Stoll found a home in the political science department, where he says his adviser and mentor, Professor Ralph Raymond, was instrumental in his intellectual development.
While in college, Hallward-Driemeier recalls knowing only one gay person: his cousin. Stoll had yet to come out as gay. The late 1980s were different times on DePauw’s campus, when there was neither an LGBT services office, with its LGBT services coordinator, nor a student organization that met every other week at the Queer Center in the Dorothy Brown House, as it now does.
Chris Stoll '91, senior staff attorney at the National Center for Lesbian Rights
“DePauw was a pretty conservative campus, and by the standards of the 1980s, being out there wasn’t really an option for me at that time,” Stoll recalls.
It wasn’t until Hallward-Driemeier studied at Oxford University on a Rhodes Scholarship that he came to have openly gay friends, including the first openly gay Rhodes Scholar who took his boyfriend to the annual Rhodes Ball. The night he met his wife-to-be in Oxford, he recalls that she spent most of the evening chatting with Brian Rolfes, now director of global recruiting for McKinsey & Company. The Hallward-Driemeiers attended Rolfes’ commitment ceremony in Saskatchewan in 1998.
Stoll and Hallward-Driemeier reconnected at Harvard Law School in 1991. The next year, they were hanging out often in the lounge of Harvard Law Review, the monthly publication that is edited and written by law school students who are selected from their first-year grades and their performance in a writing competition. Also on Law Review with them was a conservative Texan named Ted Cruz, now a U.S. senator and Republican presidential candidate.
By then, Stoll had become open about his sexuality. Studying in Harvard Square, the heart of American liberalism, certainly helped.
“There’s no question that being at Harvard, in Cambridge, made it a lot easier,” he says.
After law school, Stoll moved to San Francisco and went into private practice. He pitched in as a volunteer with the National Center for Lesbian Rights in 2001 after a woman named Diane Whipple was mauled and killed by two dogs in the lobby of her apartment building. At the time, the state’s domestic partner law did not allow her same-sex partner to sue for wrongful death. Stoll worked on the case that made California the first state to grant same-sex partners that right.
In 2004 Stoll again got involved in gender legal issues after challenges swiftly arose following San Francisco’s decision to issue same-sex marriage licenses. By 2008, after his private firm dissolved in bankruptcy, Stoll joined NCLR’s staff, just before state voters cast ballots on whether California should legalize same-sex marriage.
“I could have gone to another firm, but decided I wanted to do something that was more meaningful,” he says.
By 2013 the same-sex marriage legal environment had changed dramatically. The U.S. Supreme Court had ruled that the federal Defense of Marriage Act was unconstitutional in Windsor v. the United States, opening up federal benefits to those married in states where same-sex marriage was legal.
Hallward-Driemeier’s firm had submitted a friend-of-the-court brief for the Anti-Defamation League, seeking to overturn the law.
It was overturned on a 5-4 vote, with Justice Anthony Kennedy casting the deciding vote and writing the majority opinion.
After Windsor, the nonprofit legal advocacy organizations involved in samesex marriage – NCLR, American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, and Lambda Legal – decided to push the issue. The Windsor case was based on the U.S. Constitution’s 5th Amendment’s guarantee of equal protection for issues involving the federal government.
The advocates believed that a similar argument could be made under the 14th Amendment, which guarantees equal protection in each of the nation’s 50 states. So legal challenges were launched throughout the nation in states that had yet to legalize same-sex marriage.
Stoll and NCLR were involved in one of the first post-Windsor challenges on the state level. They filed a case on behalf of three same-sex couples living in Tennessee who had been married legally in New York or California. But when they moved to Tennessee, the state refused to recognize their legal marriages. It didn’t seem fair. In New York, if one spouse died, the married spouse could inherit their property tax-free. But in Tennessee, that same property would be taxed.
One of the Tennessee couples comprised two women, who fell in love in veterinary school, got married and landed professorships at University of Tennessee. Then one of the mothers gave birth to their child. They were unable to obtain a family health insurance policy that covered all three. And if their baby had become ill and was hospitalized, the non-birth mother would have had no right to be with her daughter or be involved in medical decisions.
Another Tennessee couple was two men who married before one shipped out to Afghanistan. Upon his return from the front, he was assigned to a base in Tennessee, where their marriage was not recognized.
“They had moved to Tennessee for work, and their marriages were invalidated,” Stoll says. “Some had children. It was not a good situation.”
In March 2014, a Tennessee judge stopped enforcement of the same-sex marriage ban. But it was overturned in November by a Tennessee federal appeals panel in an opinion that said the decision should be left to the democratic process – through ballot initiatives or action by state legislatures.
Hallward-Driemeier says the opinion hung on a single line in a 1972 case, Baker V. Nelson, in which the U.S. Supreme Court found that denial of same-sex marriage did not present a substantial question of federal law.
“We didn’t think Baker v. Nelson was the last word,” Hallward-Driemeier said one day in August, when he came to work at Ropes & Gray’s Washington office in a blue-checked shirt, blue blazer and no tie. “There had been so many decisions and developments in gender law since then that had knocked the legs out from under Baker v. Nelson.”
By late January 2015, the Supreme Court decided to hear the Tennessee case, along with cases from Ohio, Michigan and Kentucky. There were two issues the court would decide upon. First, the question of whether the U.S. Constitution’s equal protection clause required acceptance of same sex-marriage in every state, regardless of state law. The second question arose if the court ruled that state laws had primacy: should states recognize legal marriages of couples moving into states such as Tennessee?
When Hallward-Driemeier agreed in November to become involved in seeking Supreme Court review of the Tennessee case, he had no illusions that he would be chosen to make the oral argument before the panel, because there were many qualified candidates. When it came time to designate oralists, the LGBT legal advocacy community proposed that two lawyers argue on each of the two questions, meaning one from each of the four state cases. But the court let it be known that it would only allow one lawyer per question.
Hallward-Driemeier met with legal teams from the other three cases in Michigan in March to decide how to proceed. They were able to reach consensus. They chose same-sex marriage pioneer Mary Bonauto, civil rights project director of Gay & Lesbian Advocates & Defenders, to argue the first question. Hallward- Driemeier was selected to argue the second regarding recognizing another state’s legal marriage.
“When we bring these cases, we are representing an engaged and opinionated community,” Stoll says. “We knew it was important to have someone who was committed to the issue. Having known
Doug for so long, I was absolutely certain that he’d be 100 percent committed, and he was someone that the community could put their faith in. I was not wrong about that.”
That decision was made on March 31, which happened to be Hallward- Driemeier’s 48th birthday. The next day, he was arguing a bankruptcy case, Bullard v. Hyde Park Savings, before the Supreme Court, which was later decided unanimously in his client’s favor.
They had four weeks before the climactic argument before the court. “We had a ton of work to do,” he recalls. Bonauto says that the team of Stoll and Hallward-Driemeier were crucial to the eventual victory.
“Doug brought great heart, formidable intelligence, not to mention extensive Supreme Court experience to both questions before the court,” she says. “He was open to the input, and we all laughed a lot despite the pressure. To his and everyone’s credit, we worked together closely to avoid any traps that might help one case but hurt the other, and to get the right answer on both questions.”
Bonauto, meanwhile, had worked with Stoll on several previous cases.
“Chris brings great passion, incredible smarts, and a cool head to all he does,” she says.
Preparing for a Supreme Court argument is an arduous task, with briefs to be written and what’s called moot court proceedings undertaken with legal colleagues to practice one’s delivery, and answer the full range of questions that might be asked by the argumentative justices.
Hallward-Driemeier did four moots – at the Bar Association in Louisville, at Nashville School of Law, and in Washington, D.C., at Howard University and Georgetown Law School’s Supreme Court Clinic. At one moot, a former clerk to conservative Supreme Court Justice Antonin Scalia played his former boss.
“They are exhausting affairs,” Hallward- Driemeier says. “They keep you going nonstop for an hour. But after four of them, you feel like you have answered every possible question. It forces you to articulate orally, and do it succinctly. You figure out how to turn a hostile question into making a point that’s favorable to your argument.”
Long walks help, too. He recalls walking through Bethesda, Md.’s Kenwood neighborhood with colleagues, while the cherry blossoms were in full bloom.
“At one point, you have to push away from the desk, put away the binders and vocalize it,” he says. “My colleagues came to my house. We walked. And we talked.”
When the legal argument came on April 28, Hallward-Driemeier was prepared. Four sentences into his argument, the questions began. First, Justice Samuel Alito, then Justice Scalia, asked him to explain why a state should recognize a marriage legal in one state that would be unlawful to perform in another.
Scalia asked whether Hallward- Driemeier’s contention that one had the right, once married, to remain married, would extend to one who was married in a state that permitted polygamy.
“I think the justification would be that the state doesn’t have such an institution,” responded Hallward-Driemeier. “The polygamous relationship would raise all kinds of questions that state marriage laws don’t address.”
Alito wondered whether states should recognize the marriage of a 12-year-old girl. Justice Sonia Sotomayor asked about marriages between cousins. Scalia raised the state of Kentucky’s argument that allowing same-sex marriage would reduce the birth rate.
But Hallward-Driemeier returned to his basic point.
“The state asserts that it has an interest in the stability that marriage provides children,” he said. “That interest does not justify extinguishing marriages that already exist.”
And so it went for 25 minutes, with the justices peppering Hallward-Driemeier with questions, and him parrying back with his response. They’d cut him off. He’d return to his themes. He enjoyed the conversation.
“They are an inquisitive bunch, and very smart,” Hallward-Driemeier says. “They are going to ask questions, and they also want to make points with their colleagues. They’ll try to trip you up, or make you concede a point. Part of the skill you develop is discerning what they are getting at. And the questions may be one they know a colleague needs convincing on.”
Two months later, Stoll and Hallward- Driemeier returned to the hallowed chambers, which coincided with the second anniversary of the Windsor case. They sat up front, in the section reserved for attorneys, with Bonauto, and others involved in the four cases.
It’s a solemn scene, with even a smile frowned upon.
“I was sitting there, and it didn’t feel real,” Stoll recalls. “They announced the case name, and at that point, I stopped breathing for a while. Then the chief justice announced that Justice Kennedy wrote the decision. That was a good sign. And in a moment he was reading excerpts from it. He was talking about tradition and history. And then he said that tradition and history were the beginning of our analysis, but not the end of it. That’s when I finally exhaled.”
The 5-4 decision subscribed to the arguments made by Bonauto and Hallward-Dreimeier. Same-sex marriage was legal throughout the land.
“Once we were outside the building, we got to celebrate,” Stoll says.
Since the celebration, Hallward- Driemeier has continued his appellate work. In early October, he filed briefs in 11th U.S. Circuit Court of Appeals in Atlanta over a Florida law that makes it a crime for a physician to ask patients if they own firearms. Hallward-Driemeier is filing on behalf of physicians who say it’s a violation of their First Amendment rights.
Stoll, meanwhile, remains involved in the same-sex marriage issue. Despite the June victory, several states have created obstacles to full marriage equality. Stoll was on the legal team that has sought relief in federal court after the state of Florida refused to list both spouses in a same-sex marriage on birth certificates.
There are also issues emerging in states that must now allow same-sex marriage but lack human-rights laws that prevent discrimination based on sexual orientation. That opens the door for same-sex couples to marry one day, and be subject to being fired from their jobs the next.
“The fight isn’t over,” Stoll says. “There’s still work to be done.”
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David McKay Wilson’s work has appeared in alumni magazines at 125 colleges and universities, including law school magazines at Harvard, Stanford, Georgetown, Fordham and University of Chicago. He also writes for USA Today.
