Pantsuits and Lawsuits with Attorneys General Kris Mayes and Dana Nessel

Love Wins: 10 Years of Obergefell v. Hodges - PART 1

• Attorneys General Kris Mayes & Dana Nessel

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Ten years after the landmark Obergefell decision legalized same-sex marriage nationwide, Michigan Attorney General Dana Nessel takes us behind the scenes of the historic legal battle she personally led. As the attorney who argued Michigan's DeBoer v. Snyder case (later consolidated with Obergefell), Nessel provides a remarkably candid account of what it took to secure marriage equality against overwhelming odds.

Nessel shares deeply personal reflections about what the victory meant, calling the day Obergefell was decided "the best day of my life." Local clerks set up impromptu wedding services for couples who had waited decades to marry legally. Beyond the emotional impact, marriage equality brought economic benefits, increased adoption rates for foster children, and crucial family stability. Nessel's own experience as a parent illustrates how marriage rights transformed everyday life – enabling her wife to legally adopt their children and make medical decisions when their son needed surgery.

This Pride Month conversation also comes with a warning. With Justice Thomas explicitly calling for Obergefell to be reconsidered and unconstitutional marriage bans still on the books in many states, the rights secured in 2015 remain vulnerable. Subscribe to hear part two of this special series featuring an interview with April and Jane themselves – the couple whose fight to protect their family changed America.


Credit: This episode includes excerpts from news segments from the Associated Press, MSNBC, NBC News, WPTV News, WSBT-TV, WXYZ-TV Detroit, KHON2 News, and other clips from Youtube. 

Speaker 1:

Hello listeners and thank you for tuning in for this week's episode.

Speaker 2:

Welcome to our special Pride Month edition of Pantsuits and Lawsuits. This June, as we all know, marks the 10-year anniversary of the Supreme Court's landmark decision in Obergefell legalizing same-sex marriage across the country.

Speaker 1:

And I will note this is the gayest AG podcast in America, so it's really a good place to tune in for this.

Speaker 2:

I think that's you know, empirically true.

Speaker 4:

Yes, I would agree. The Supreme Court makes a landmark decision. In a 5-4 vote the justices ruled same-sex marriage is legal in the US.

Speaker 2:

That means 14 states, including Michigan that have banned Same-sex marriage is now legal across the country. By a 5-4 vote, the US Supreme Court ruled that same-sex couples you can hear the cheer in the crowd.

Speaker 4:

A very dramatic moment here A 5-4 decision, written by Justice Anthony Kennedy. This is a total victory for the advocates of same-sex marriage. Gay marriages nationwide. In a 5-4 decision the justice ruled every gay couple in America has the right to get married, no matter where they live.

Speaker 3:

They say this is not just about marriage between two men or two women. This is about the over 1,000 rights that come along with it.

Speaker 4:

Now that historic Supreme Court decision legalizing same-sex marriage across the land and it's profound. The five to four vote in many ways reflecting the huge societal shift of the last 20 years. The president saying today there are days like this when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.

Speaker 3:

This is also a great day for our Constitution, Make no mistake about it. Today, the court stood by a principle in this nation that we do not tolerate laws that disadvantage people because of who they are. So it is a day for equality, for liberty and for justice under law.

Speaker 2:

Crying tears of joy, just absolute. I'm shaken right now, just from joy. It's the greatest gift possible. You know, a few years ago I never imagined I would be able to get married. I don't think it's quite set in yet.

Speaker 1:

I was talking to the Washtenaw County Clerk's Office and they have extra employees lined up today because they are expecting a lot of people to get married.

Speaker 2:

What do you want to say to everybody getting married today? Congratulations, congratulations. You know a lot has changed, obviously, in the last 10 years, and LGBTQ rights are no exception, but tell us a little bit about what was going on in Michigan and how you know how the law in this area evolved.

Speaker 1:

DeBoer v Snyder, and you know we filed it in early 2012. And at that time, in Michigan, I mean, we had no rights of any kind for the LGBTQ population. And it wasn't just that, we had a marriage ban, which, of course, like 35 states in the country, had marriage bans mostly from 2004, when, you know, part of Karl Rove's strategy to reelect George W Bush was to put all of these same-sex marriage bans into state constitutions, even though most states already it was statutorily banned. Michigan was one of those states, and I remember very firmly being so disappointed with that passed in Michigan, but just double-checking my parents' absentee ballot to make sure that they weren't accidentally voting for same-sex marriage in Michigan. But with that being the case, it passed in Michigan, and so in Michigan, it wasn't just not the right to marry, we also banned domestic partnerships, and because of the law on marriage, couples could not adopt children together who were unmarried, and that meant that any same-sex couples couldn't. And so you had this set of circumstances where there were no protections of any kind whatsoever for same-sex couples and the children that they were raising together, and that was not the case for most other states.

Speaker 1:

There was some mechanism in most states almost every state but Michigan to have at least some sort of legal rights to a child that you were raising. But not in the state of Michigan. And I had actually just lost a case in the state courts that dealt with a couple who were raising three children together and they split up and the non-biological parents got a PPO against the other parents. And you know I was fighting that out under our custody laws and ultimately lost that case in the state courts and unfortunately my client never saw her three kids again after that. But it became more clear to me than ever how horrible that was, not just, of course, to a parent who was raising a child, but to a child who would lose their parent forever because one of their parents had no legal rights of any kind to them.

Speaker 1:

But as I often say and this is sort of a recurring theme in the democratic AG world, you can't win a case you never file and I, even though I was at the time just in very small practice and certainly not part of some big LGBTQ or civil rights organization all of those organizations had turned down any sort of effort to challenge the ban on same-sex marriage or the ban on adoption for same-sex couples in Michigan because, you may know, michigan is contained within the Sixth Circuit, which is not known to be historically a very progressive circuit, and they did not ever want to bring a case for the sick.

Speaker 1:

So what we saw as time went on, all these great cases that went through the first circuit and the second circuit and the ninth circuit and you had all kinds of rights that were, you know, percolating up for same-sex couples and their families in states throughout the country, but not here in Michigan.

Speaker 1:

And I would get very upset and say, look, I know we're a flyover state, but it doesn't mean that same-sex couples here don't deserve to have any rights. And so, finally, myself and a woman who also rented office space in the same office where I was in Detroit, we just decided you know what the heck? You know what do we have to lose? We can't. We have zero rights in this state. We can't do like worse than zero. What's worse than zero? I know that people thought I was crazy, but I said from the very beginning, as soon as I met April and Jane, I'm telling you, they walked into my office, we discussed what concerns they had. I've brought to them this crazy idea of filing this federal lawsuit which they'll tell you about, and I know they had to think long and hard about whether they wanted to do it or not.

Speaker 2:

I was going to say can I ask you, can I interrupt? Did you find them or did they find you?

Speaker 1:

They just walked into my office, they made an appointment. They wanted they had a near-death experience where they almost got ran off the road, wow and they wanted to try to formulate some legal protections for their children if something were to happen to one or the other of them. And that's when I always had to break it to couples like April and Jane, like I'm sorry, there's nothing that I can do to really help you because the court can totally disregard whatever your instructions are, because you technically don't have any legal rights to these kids. And but I brought this up to them that day. I said to people this case is going to go to the United States Supreme Court and I just I don't know, I just knew that that this was the case. And how could you?

Speaker 2:

know that, like I'm just, was that sort of a metaphysical sort of experience that you had, or on the, on the merits, like how could you know that something came over you and it was.

Speaker 1:

First of all, they were the perfect couple in terms of their circumstances, but they were the perfect people, they were the perfect vehicle for the case.

Speaker 1:

But also, I mean, you had this unusual set of circumstances here.

Speaker 1:

They were asked by the state of Michigan to take these abandoned and surrendered children into their homes to raise them because as nurses as NICU nurses, emergency room nurses with these special needs children, babies, infants they were uniquely situated to raise them because as nurses as NICU nurses, emergency room nurses with these special needs children, babies, infants they were uniquely situated to raise these children.

Speaker 1:

So for the state of Michigan to say we want you to raise these kids as foster kids, but now we're not going to let you adopt those kids that, candidly, you love and you've raised them as your own but no one else wants, but now we're not going to let you have legal rights to them, it was so plainly ridiculous on every level that I thought there's no way I can't get a majority of justices on the Supreme Court, but just the general public, to understand the absurdity in the law that would stop these wonderful people who, by the way, the state of Michigan, the Department of Attorney General, stipulated that they were excellent parents, stipulated to it, did not contest that they were wonderful parents to their children.

Speaker 2:

That is an amazing case on the facts yes, I can see it.

Speaker 1:

I just knew it and I knew, at least at that time, that we had at least five votes on the Supreme Court and I knew that if we did a good enough job in the pleadings and in the arguments and in the claims and in presenting the evidence in court, I just knew that it's not just that the courts would be on our side, but the public would demand it Interesting.

Speaker 2:

Well, it's really interesting to me. So, as you made it clear that you were going to take this case and you were going to do this case, did you get direct pushback from organizations that were really worried about the circuit, or did they just say, oh well, we'll let her try, but she's not going to make it?

Speaker 1:

The pushback we received was so significant make it. The pushback we received was so significant. I would say that it was more time, effort and energy to combat those groups the groups that we all know about and they still exist than it was filing the case against the government, because we were battling it on two fronts. They were so certain that we were going to lose in the Sixth Circuit and, as it turned out, they were right. But it's only because we lost in the Sixth Circuit. After having our trial, we were only one of three trials in history in regard to the issue of marriage equality.

Speaker 1:

The split in the circuit, as you know, is what causes the case to then go to the United States Supreme Court. So all the Sixth Circuit cases Michigan, Ohio, tennessee, kentucky all ended up being consolidated and going to the United States Supreme Court. The Ohio case was the Obergefell case, our case, and I probably told you this story many times. Initially it was called DeBorer v Snyder. It was the Michigan case and we filed our petition two hours later than Ohio, so it got flipped in the caption. But if you read Obergefell v Hodges and just for posterity's sake I suggest everybody do that it's really not about Everybody go read it, read it tonight.

Speaker 1:

Read it tonight. It's about April and Jane and their family, and that is what it's about. And we were the only ones we had a trial transcript. Our judge made sure that we went to trial because he wanted to have a good factual record upon which to base his ruling. Yeah, it was a fascinating trial. It took place during the polar vortex of 2014. Like, literally, there was a polar vortex that's right During the polar vortex of 2014. Like, literally, there was a polar vortex that's right During the polar vortex. Witnesses that came in from California and Texas and I remember them saying like wow, it's really cold in Michigan. I'm like, well, it's not usually negative 40, but it is today. But because, literally, hell was freezing over or something.

Speaker 2:

What year?

Speaker 1:

was the trial? Again, what year was your trial? We tried the case in 2014. Okay, and then it went to the Supreme Court the following year in April of 2015. So we argued the case in April of 2015. And then, at one of the very last days of that term, in late June of 2015 is when our decision came down. It was a 5-4 decision, but we won it.

Speaker 2:

Do you remember where you were when you heard, when you first heard about it?

Speaker 1:

Do I.

Speaker 1:

We have lots of video of it and in fact maybe we can try an overlay videotape of the decision coming in, because you can see it live. It's me and my co-counsel, and April and Jane, and we're watching the SCOTUS blog on the wall on a screen and it was the very first decision that came in and it was yeah, it was an amazing day. The other thing I will tell you about that day is that a number of the local clerks just set up shot in this courtyard where we were receiving the case in, and you had couples that had been together for 40, 50, 60 years that got married that day, one after the other. Wow, that day.

Speaker 2:

That day? Yeah, did you do the ceremonies for any of them that day? Yeah, did you do the ceremonies for any of them?

Speaker 1:

No, I don't think I had applied for my ministerial authority to officiate marriages at that point, but I watched lots of the local mayors marrying long suffering couples and it was, I will say, to this day. I mean, I've been elected now twice, uh, attorney general, and I've had other interesting things happen in my time in my career. It was the best day of my life was it really?

Speaker 1:

absolutely wow, that's saying a lot yeah, it was, it was, it was an incredible, I mean, to work on something so hard, but not just that something that is so meaningful to so many people, so life-changing and I would say this and I know that there are people, obviously, that have different viewpoints on it Something that, to me, was just so overpoweringly positive and made people so happy and made people's lives so complete and, I maintain, helped so many people but hurt no one, literally, yeah, exactly.

Speaker 2:

I mean, we had, I guess, kind of a similar trajectory in Arizona, although with a few differences. We had statutes that had been passed here back in 1996, banning gay marriage, and it's interesting because I guess it took an extra four years. You guys got your ban was it a constitutional ban in 2004? Well, ours didn't happen until 2008. So I don't, I'm not sure if they tried earlier or they just didn't get around to trying until 2008 maybe they just didn't get the signatures, or something maybe, yeah, I mean, we, yeah.

Speaker 2:

So, and that passed in 2008. Well, it was. It defined marriage as between a man and a woman, um, union of one man and one woman. It was the precise language. And then it was in 2014 that, uh, in october of 2014, a federal judge and there were several cases that were brought out here, probably similar to yours, um, and a federal judge declared our amendment unconstitutional. So, if you know, obviously that presents huge problems for us if obergefell were to be overturned yeah, it's still on the books, yeah, never been repealed.

Speaker 1:

No, and it's the same thing in most of the states. It's the same thing in michigan, the states, it's the same thing in Michigan and you know what, with, of course, a Supreme Court that looks poised to potentially overturn Obergefell. And obviously we've had Judge Thomas, you know, in the Dobbs case, specifically say like someone, bring me a vehicle with which to overturn Obergefell, and not just Obergefell, of course, but Griswold v Connecticut, the birth control case.

Speaker 2:

Birth control. I mean all of these substantive due process rights at risk here. I think that's really important. A couple of things I think we should also note here, in addition to the fact that this is a fundamental right. But number one, we're not just talking about gay marriage. We're talking about other rights that people very much take for granted, like contraception and the ability to use contraception. I think it's important to note. You know the economic boon that marriage is for states. There have been numerous studies that show, as I know you know, that same-sex marriage brings huge economic benefits to all of our states as well. In fact, one study the Williams Institute stated that it boosted local economies by $3.8 billion with a B and supported an estimated 45,000 jobs. I'm assuming that's a low ball figure.

Speaker 1:

Well, and there's more to it than that it's. It's and this was part of our case that was so compelling is that same-sex couples were more likely to adopt from foster care than opposite sex couples, and same-sex couples were more likely to take children that I hate to phrase it this way, but I guess we're less desirable in in terms of having physical issues or Greater challenges yeah, and they were more likely to take those children into their homes and to adopt them. And, as you know, the foster care system I mean it's enormously expensive to keep kids in foster care. Of course it's preferential to have people adopt them and for them not to be wards of the state anymore. And then those children, when they get adopted, their outcomes they are so much better, they're going to have such a brighter future because they have permanent loving homes. So that was really a win-win and a big part of our case as well, and it also helped the stability of those families. So you have families that were more likely to stay together in the event that you had a legal marriage, not to mention all the benefits that come with marriage, of course you know, including things like, you know, health insurance and you know and many other things that are.

Speaker 1:

We tie in society directly to a legal marriage. It created better stability in those families and more stable families. That's just better for our communities And's just better for our communities and it's better for the nation. And I just know for me personally how my life changed and I will say this. I mean, as you know, we've both been single parents. Being a single parent is hard and I mean props to everyone out there who voluntarily wants to be a single parent. But you tell people they have to be single parents, that you cannot be part of a married couple legally raising kids together. What a horrible thing for your state to tell you that you're not allowed to have a legal relationship. And I remember shortly after the case when my wife and I were married it's our, you know working map in our 10 year anniversary to just yeah.

Speaker 2:

I guess, so.

Speaker 1:

But shortly thereafter, when she was able to adopt our children, I had a really big jury trial at the same time as one of our sons needed surgery. Oh wow, and the feeling of being able to say how about you take care of this? I got to go try this case and you and I can't be there for for the entirety of the time that our son is in the hospital. But now there's someone else who can, and I didn't lose my job you know I could still have a job and and have somebody be with our son in the hospital, and that sounds like not a very big deal, right.

Speaker 2:

Oh, trust me, I know it's a big deal. Being the one amongst us who's not married and never has been, and is a single mom. It's a very big deal.

Speaker 1:

But, I just remember thinking like why would you put people in a position where they couldn't have this, put people in a position where they couldn't have this? And you know the fact that that we were able to. Then you know, I raised my children then into adulthood having two legal parents. As, as you know, I mean it. It it's a really big deal when you can have another person there with legal who has the ability to make those decisions for your children and help in all the different ways. It was so meaningful for me and my life for a million different reasons and it changed everything about the dynamics of our family, and so I can say, like I am a living, breathing example of how important it is that people have constitutional rights to things like the ability to have legal families.

Speaker 2:

Yeah, that's a wrap on this episode of Pantsuits and Lawsuits. This special two-part Pride Month series is all about the fight for marriage equality what led us here and what's at risk if we lose ground. Later this month we're back with part two, a powerful conversation with AG Nessel and her former clients April and Jane, whose fight to protect their family went all the way to the United States Supreme Court and secured the freedom to marry for same-sex couples nationwide. Until then, happy Pride and thanks for listening Next week on Pantsuits and Lawsuits.

Speaker 3:

Most people understood. They realized that we weren't really out for marriage per se, but it was to protect the kids.

Speaker 2:

Once that was explained, people were like okay, I can see why you're doing this Once we got to the Supreme Court.

Speaker 3:

wow, what a feeling. I mean like we're just two parents that want our kids to have safeties.

Speaker 1:

How are we in the Supreme Court? It was just crazy.