Pantsuits and Lawsuits with Attorneys General Kris Mayes and Dana Nessel

Love Wins: 10 Years of Obergefell v. Hodges - PART 2

• Attorneys General Kris Mayes & Dana Nessel

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A decade ago, two Michigan nurses embarked on a journey that would transform American history – not in hopes of a constitutional revolution, but because they wanted to protect their children.

April DeBoer and Jane Rowse had been together for 18 years when they first approached attorney Dana Nessel about a seemingly simple problem. As Michigan foster parents raising three children, they faced a legal paradox: the state trusted them to foster children together but prohibited them from jointly adopting. Each parent could only legally adopt specific children, creating a precarious situation where neither had legal rights to all their children.

After surviving a near-fatal car accident, the reality hit them hard – if something happened to either mother, their family could be torn apart by the legal system they trusted to protect them. What began as an adoption rights case unexpectedly pivoted when a federal judge suggested they challenge Michigan's marriage ban instead. This fateful turn transformed their personal struggle into what would become the landmark Supreme Court case legalizing same-sex marriage nationwide.

April and Jayne invite listeners into the emotional Supreme Court experience – from the sea of supporters outside, to the confusing oral arguments where Justice Kennedy's position remained unclear, to the euphoric moment when they learned they'd won. With remarkable candor, they share how they balanced raising five children while becoming reluctant civil rights pioneers, and how they found courage in looking at "those tiny faces" they were fighting to protect.

As we mark ten years since Obergefell, their story offers both inspiration and warning. While reflecting on how quickly attitudes have changed, these accidental figureheads also express concern about how easily these LGBTQ rights and protections could disappear. Their powerful testimony reminds us that behind every landmark legal decision are real families with everything at stake – and that ordinary citizens stepping up for their children can indeed change history.

Speaker 1:

Hello and welcome back to the second installment of our special Pride Month retrospective celebrating the 10-year anniversary of Obergefell v Hodges landmark Supreme Court case, which legalized same-sex marriage and adoption rights all across the United States.

Speaker 2:

I'm Michigan Attorney General Dana Nessel.

Speaker 2:

And I'm Arizona Attorney General Chris Mays, and if you, were not able to catch part one of this riveting episode, we'd recommend pausing now and listening to that one first. Let's get started, and I will just say this personally, because this is the story of April and Jane, but it's my story too. You know, I met my wife working on this case. I met her at a local library. They were having a Democratic club meeting which I had never been to before. It was my first Dem club meeting and I was desperately because we couldn't get funding to support the litigation, which had become very expensive, and it was hard for the attorneys ourselves to have to eat all those costs. And so I started going to some different Dem clubs, including in my own hometown, where I didn't even know they had a Dem club and my mother-in-law was the president of the Dem club.

Speaker 2:

And I met her daughter, who began working on helping us raise money and then put together a nonprofit to subsidize the cost of the case. Wow. Then she started working on the case and became our project manager to put all the exhibits and everything together for trial and the PowerPoint and all the rest. We got engaged. I proposed to her on the steps of the Supreme court, following our argument, and then we got kidding, really following your argument, wow, right after the arguments, and I said, if that's so romantic, yes, if five of the nine justices of this Supreme court agree, will you be applicant number two on my application for a marriage license in the state of Michigan.

Speaker 1:

Those were oh my God.

Speaker 2:

Well, that was my proposal to her. Literally, that was it. That was it. She was very romantic, romantic, uh. She accepted in a weird sort of way. Yeah, hi, you guys, thank you so much for uh joining us, and I know it's been a little bit since we've seen each other. But, april and jane, this is ag chris mays, from arizona, and, as you probably know, now we have a podcast together and I'm so excited that you guys could join us today to talk about the 10-year anniversary of obergeveld, slasher v, snyder, deboer, which is what it really should be called.

Speaker 1:

Yes, exactly, we've been talking, dana and I have been talking, and she gave me the full procedural history and how it really should have been called something else.

Speaker 2:

Yes, Absolutely, and again, no offense to him. But in our household we refer to Jim Obergefell as an accident of history because we still believe the case should be called DeBoer v Snyder. And I actually have a coffee mug from the Supreme Court that has all the most impactful cases and I have it like duct taped out and I have written DeBoer v Snyder over Obergefell. That's great. Just just to back up, you guys have five children together. We do, yes. Do you want to tell AG Mays and our listeners a little bit about how you guys formed your family?

Speaker 6:

Oh sure. So Jane and I adopted all five of our children. So initially Nolan came to us first, and here in the state of Michigan we were not allowed to adopt the children together. So Nolan was adopted initially by Jane, and then we had Ryan come into our house and to our life and she initially was adopted by me. And then Jacob came and Jacob was adopted again by Jane because I was still in the process of adopting Ryanne, and so we had these three wonderful children, and that's how it all started. And then we adopted two more children. After the two of them, riley was adopted again by me, and then Kennedy came after the ruling and the decision. So she was the first and only child to be jointly adopted by both of us.

Speaker 2:

And Chris, I'm sure it's not lost on you the name of their youngest child, Named after Justice Kennedy.

Speaker 1:

Very interesting Okay good.

Speaker 2:

But again, and just important to know, that April and Jane, you guys had been together when you first brought Nolan in. For how many years had you guys been a couple? Oh, that's totally you.

Speaker 3:

Jane, let's see 18.

Speaker 2:

Wow, about 18 years. And both April and Jane were, at the time, nurses in local hospitals in Detroit and Jane was an emergency room nurse and April was a NICU nurse, and they had both been qualified by the state to be foster care parents. So they were able to bring children into their homes as foster care parents, and jointly so, but not as adoptive parents together, which was a weird quirk of the law that we found to be incredibly horrible. So I'm just with that background for everybody, yeah for sure, with that you guys. I wonder if you could just start off by telling us a little bit about that fateful day back in. I believe it was 2011, I think, when we first spoke and talked about the possibility of bringing this federal lawsuit.

Speaker 6:

So, yeah, I think I had located you. We had a near-miss accident, almost were killed in a car accident, and the realization hit that if something happened to Jane, that the boys would end up not having a parent and I personally would have no legal right to either of the boys. Yeah, and then the realization that my mom, who is really the only I shouldn't say just my mom, but my family was really the only family that the kids had known because we lived in Michigan, and Jane's family's from Indiana. And then it was the realization that Nolan, had he survived, would have been going to somebody that he didn't know really at all, because they would have the next legal right to no one, and that just didn't sit well with us.

Speaker 6:

And we had been seeing a bunch of advertisements and information about Dana wanting to do some second documentation for wills and all of that in child custody for gays and lesbians who found themselves in this situation. So I reached out to her and I'm like, what can we do? And her comment was well, we can get this all on paper, but it's only going to be worth the paper that it's written on, because the judges can make any decision that they want based on us having no legal right to our kids, and so we went from there to well, what else can we do?

Speaker 3:

And Dana the great plan up her sleeve.

Speaker 1:

Tell me about that great plan and what it was like to work with her, and did she prepare you at all or steal you for what was ahead, what was going to be this, what must have been a roller coaster of a ride and, at the end of the day, literally making American history. Like what was that like working with her? I'm just curious.

Speaker 3:

Nobody anticipated where it was going to go, that's for sure. Really Okay, no.

Speaker 1:

Did she tell you? But she just told me that she had a feeling deep down that this thing was going to go all the way.

Speaker 3:

but she didn't share, that we didn't know it was going to switch to marriage. That was, I think that was the big thing, was you know? We had hoped that adoption would have been the key, because that was something everybody could get behind. But when you know, judge Friedman said, well, this is a gay marriage case, we were like, oh no, that's not what this is, and that was, that was the pivotal point in all this that everybody went, oh no, what do we do now?

Speaker 2:

We were initially challenging the the adoption code in.

Speaker 2:

Michigan that didn't allow for people who weren't married to be able to adopt jointly. And when we had cross motions for summary judgment before our district court judge in the Eastern District of Michigan, he surprised all of us by not granting either of the motions for summary and by saying I think you have to amend your pleadings. This is not an adoption case, this is a marriage case. You have to challenge the Michigan marriage amendment which doesn't allow you to get married in the first place, because you wouldn't have to worry about the adoption code saying that you had to be a married couple. If only you could get married. So really you should just challenge the marriage ban. And that threw all of us for a little bit of a loop, I thought I think is a mild way to put it.

Speaker 1:

So, so so you end up in this case case it's it's taking these twists and these turns and, as dana has described earlier, uh, in the podcast, you, you all end up really kind of getting um swept into this um case that ends up at the supreme court. I mean, I don't mean to cut to the chase or anything, but what was that like? And then tell me what it was like when, on the day that you that you won won the case or found out that you'd won the case, the way to get to the Supreme Court, or when we got there Both both, especially when you got there, but both what was, what was, what was both like?

Speaker 3:

I think getting there was. You know it's going to sound crazy, but it wasn't hard, it was going, you know, going through things. But once we really explained why we were doing what we were doing, most people understood. They realized that we weren't really out for marriage per se, but it was to protect the kids. Yeah, once that was explained, people were like, okay, I can see why you're doing this. Yeah, um, once we got to the Supreme Court, wow, what a feeling that was. That was crazy. Like nothing I'd ever seen there was. You know, there was just a sea of people and the Michigan contingent was huge. Like, what we brought was incredible.

Speaker 1:

So you were there the day of the arguments.

Speaker 3:

Yes, we were in the court the day of the arguments wow, what did that feel like?

Speaker 1:

what was that like?

Speaker 6:

well, I think, um, my, the scariest moment of that whole thing was how they brought into the supreme court. They walked us through the crowd. It was a little scary, but it was just a sense of awe, like how did we get here? I mean, like we're just two parents who want our kids to have safeties, how are we in the Supreme Court?

Speaker 1:

It was just crazy, it's just crazy and I guess let me ask this question to all three of you. What was when you were listening to the oral argument? What were your thoughts? And, Dana, like, what were you thinking? How did you feel? Like it was going in the moment?

Speaker 2:

Obviously, it ended up going well. But yeah, I mean, the thing was it was so hard to tell. You know, as you would anticipate, the questions that were asked by Justice Kagan were semi predictable by, you know, justice Ginsburg Also. The questions that Alito asked were not very favorable, as you would anticipate. But it was Kennedy that I couldn't tell which way he was going to go. And here we knew that the entire case was predicated on what Kennedy was going to do most likely. I kind of hoped maybe there was a chance with Roberts, but that was an outside chance. But it was Kennedy that we were counting on and the way he was positioning his questions I couldn't tell one way or the other. And it was the first time I thought my God, are we going to lose this case? Because I don't know what you guys thought, but I wasn't sure from some of the questions that he asked.

Speaker 4:

You said that. Well, marriage is different because it's controlled by the government. But from a historical, from an anthropological standpoint, Justice Scalia was very careful to talk about societies. Justice Alito talked about cultures. If you read about the Kalahari people or ancient peoples, they didn't have a government that made this Well, they made it themselves, and it was man or woman.

Speaker 4:

Part of what you see, I suppose, is to ascertain whether the social science, the new studies, are accurate, but that it seems to me then that we should not consult at all the social science on this because it's too new. You say we don't need to wait for changes. So it seems to me that if we're not going to wait, then it's only fair for us to say well, we're not going to consult social science. Justice Alito's question points out the assumption of his hypothetical and the way these cases are presented is that the state does have a sufficient interest so that it need not allow the marriages in that state. So there is a sufficient interest under our arguendo assumption here to say that this is not a fundamental right. But then, suddenly, if you're out of state, why should the state have to yield?

Speaker 3:

I thought the questions were crazy. Yeah, the questions. We were just like where are we going with this? Because to me some of them didn't line up with what the case was all about. They were going down this rabbit hole of weird questions.

Speaker 6:

I think we left just not not knowing, like if there was a bigger question after we left than before we went in.

Speaker 1:

So so then the big day happens. Well, tell me about where you were when, when it happened, and what, what you, what went through your minds when the decision was read.

Speaker 3:

Well, every day we waited for if the case was going to be put up that day, and every day it was like, oh, and it got down to Friday, and it was either Friday or Monday when it was, it had to come out. And I we had plans every day to be in Ann Arbor. So we were at the Jim Toy Center in Ann Arbor and waiting, yeah, hoping, hoping it was going to come out, because there were just hundreds and hundreds of people waiting.

Speaker 2:

And media press from all across the world. Yes, yeah.

Speaker 3:

Wow.

Speaker 1:

So when it popped up, we were together.

Speaker 3:

We were all together. Ok, yeah, we were. We were all on our edge of our seats waiting to see if it was going to pop up. So when it did, then everybody really leaned in and waited to hear what was going to be said, and I think it was Alana that actually read it, and then Carol was right behind her and it was like, and then it was like quiet and then celebration.

Speaker 2:

Yeah, I mean nobody wants to be wrong because you're in real time, You're reading it, while you have all these members of the press that are reading it and you know nobody wants to be like, oh, that that's the wrong interpretation of what they just said of this summary, but it's so. It took us a second or two before we all jumped up and just I mean tears of joy, yes and so, and just I mean tears of joy, yes, and celebrate.

Speaker 3:

Oh yeah, yeah, I think it was like we won. I think we won. Wait, we won. It was just, you know, jumping around and hugging and tears.

Speaker 6:

And my kids were actually in a summer camp of sorts and so my mom had taken them over there and so somebody had the television running inside the building and my mom said it was the cutest thing she says all of a sudden she heard there. And my mom said it was the cutest thing she says all of a sudden she heard there's my mom.

Speaker 1:

So so what was the immediate? So you have this incredible moment of euphoria over this decision. What was the immediate practical effect of, of the decision?

Speaker 3:

they had to plan a wedding now we had to go out and watch weddings.

Speaker 1:

Yeah, party first, yeah then it was yeah, yeah, oh yeah, people got married like crazy.

Speaker 3:

It was great, I think we.

Speaker 6:

We signed a couple of uh wedding certificates, I believe as witnesses.

Speaker 2:

yeah, you guys did remember that we signed a couple of wedding certificates, I believe, as witnesses.

Speaker 1:

Yeah, you guys did Remember that, but you ultimately achieved what you set out to achieve.

Speaker 6:

Correct. If it weren't for the group of attorneys that we had, I don't think we would have made it where we were. But yeah, we got what we wanted and what my kids needed, and that's really the bottom line.

Speaker 1:

You know you mentioned something I don't know if it was you, jane, or April, april. You mentioned that that people, um, when you, when you talk to people about, uh, the practical implications of being able to adopt and and get married, they started to get it, they started to support what you were doing. Um, I guess, and and I guess my question is um. So what's the reaction? You know we're coming up on 10 years, the 10-year anniversary of this decision. Has that support only grown, do you feel like, since the decision? But also there's been rumblings that the Supreme Court might overturn it. We've had some really disturbing comments by at least one, if not more, of the Supreme Court justices about potentially overturning it. How do people react?

Speaker 3:

now, I haven't had any negatives. I don't know about you, I mean, everybody just seems to be like had any negatives? I don't. I don't know about you. I mean, everybody just seems to be like oh, they're married, okay, life goes on, there's no difference. I haven't heard any negative.

Speaker 6:

I haven't either. We, we have not been approached by anybody. There's been really no negative media. No, not on our end anyway. But again, we kind of faded into the background because you know, we did our work and yes, you did.

Speaker 2:

We were tired, but I will say this I think that April and Jane being who they are and their family being who they were, and them opening themselves up the way that you have to when you are the plaintiffs in a massive case, as this one was, you know, I know it took a toll on them and their family, but for us, you know, for me, working on the case, I wanted the entire world to get to know April and Jane and their kids, because I knew that to know them is to love them and to understand that if you know this family, you can't otherize them. They are just like you. They are your friends, they are your neighbors, they're the. These are the people you go to when you have a sick family member and you you have. You go to the hospital or you know this is. These are parents who are on your kid's field trip. You know a chaperones with you. They're exactly like you and they just want to be treated exactly the same. No better, no, not inferior. They just want to be treated the same as all other couples and all other families.

Speaker 2:

And that's what April and Jane did is they brought that to everybody and they know that there was not a camera that they shied away from or a microphone, when I had shoved it in front of them and said you know, make sure you're presenting your case. I mean, I can't do this and the other lawyers can't do this the way that you can, to be advocates for yourself, to show the whole world that you're just regular people and you're just a family that wants to be recognized as a legal family with legal rights, like all other families are. And they did just such a phenomenal job in that. So, yes, I'd like to think that the lawyers on the case made very good arguments and presented good evidence, but it was them as a family. I think that ultimately led to the success of this case. That ultimately led to the success of this case because, whether we want to believe it or not, I think that the Supreme Court does pay attention to public opinion.

Speaker 5:

I think it does matter.

Speaker 2:

And I think that they were an instrumental part themselves, with many other families across the United States stepping forward and saying, instead of hiding in the shadows, saying we are a family too and we deserve to have these rights. And they subjected themselves to a lot in terms of the time, the energy, the effort and also you know it's a scary thing to put yourself out there publicly like that, but they were champs and they never said no to any of that stuff and I think they understood their place in history and they stepped up, and but not for this. You know normally a lot of these groups. You know ECLU or, or you know you know Lambda Legal or all these other groups. You know they spend so much time like selecting their plaintiffs right and making sure that they have people that will present best to the courts. And you know we didn't do any of that.

Speaker 2:

Just April and Jane called me up one day and I heard their story and I was so moved by it. I just knew that that they were the ones to really move the ball forward and they were such champs. I can't believe that you guys said yes first of all, and it was a very difficult three and a half years or so. I mean, it was not easy on them, it was not easier on their families, but they did everything that was asked of them and I think they were a big part of this win, as well as many other factors that coalesced at the same time, so they deserve a lot of credit for this.

Speaker 1:

This is a very organic story, which is really interesting, dana, and how your case came about During that three and a half years. I guess my question for both of you, april and Jane, is did you ever feel like at any point, I can't do this? This is too much. Dana has got me in way over my head Because she's right. It's one thing for Dana and I we love doing television, right, dana? But it's another thing to ask you guys who are trying to raise multiple kiddos with full-time, really, really hard jobs to go out there and do this and be the lead plaintiffs in a case like this.

Speaker 6:

Were there times that we looked at each other and said have we lost our minds? Of course there were times. But you go back home and you stare at those three, four, five tiny faces and you know. You know you're doing the right thing. No, any parent, any mother, is going to do anything that they can to protect their child and that's all we were doing. You know. I think at some point in time they tried to change the idea of the court case. When they changed it to marriage, we were asked by some outside groups to focus on Jane and I, and when we did that, it wasn't natural because this wasn't about Jane and I. Jane and I knew what we were getting ourselves into. We knew when we got married and had our commitment ceremony, we knew what we were looking into. I don't think when we started adopting kids that we realized what we were getting them into and it wasn't fair. So we were going to do anything we could to make sure that they were safe.

Speaker 2:

Yeah, and I mean just all of the hundreds of thousands of families now that have rights that they sort of take for granted, not knowing what it was like to live during a time period where they didn't have those rights. And again, it's only been 10 years, it's not like this is something that happened 50 years ago or 70 years ago or 100 years ago. But I think that the collective memory, especially for younger generations, of what it was like to not have the same rights and you know, as your neighbors, as all the other families that you know, I mean, I think that's been sort of lost in many ways, because we did make a lot of progress very, very quickly, and I think it's only now that people are starting to appreciate that all of that can be taken away just as quickly as it came about in the first place.

Speaker 6:

Yes, we were asked a question as to how are we going to celebrate the 10 year anniversary, and the only thing I could think of was I don't know that I can celebrate it. Yes, we're happy we're here, but it just takes a moment for us to lose all of this. And and how do you celebrate that?

Speaker 1:

Dana. Behind her has a picture of herself arguing your case.

Speaker 3:

And there's you guys, there you are, oh there we are.

Speaker 2:

Yeah, we all looked like 40 years younger, I think at that time.

Speaker 3:

That's not my drawing, Dana.

Speaker 2:

No, she, during the course of the trial. Jane is actually a very good artist, by the way. I have your drawings. Here's the funny part, of course, is that you know who do we try this case against? But the Department of Attorney General, and so all of our opposing counsel, all those lawyers now work for me, and so Jane, you know, would sketch like hilarious little cartoons of them.

Speaker 2:

But it is why I mean, it's one of horrifically creative arguments as to why, you know, same-sex couples weren't good enough to get married, why we couldn't. You know why same-sex couples couldn't appreciate the sanctity of marriage, or why our children were destined to all go to prison, which was an actual argument that they made. And to know that by people like you and I serving in these roles, we can ensure that our state tax dollars are used to protect our state residents instead of to discriminate against them. And I think that's sort of an interesting point. Now too, and I always tell the story of like, downstairs in the lobby, right in front of my predecessor's portrait down, there is a pride flag, which I'm sure if he ever comes back to the Department of Attorney General, he will really appreciate the placement of that particular flag. It matters having people in these critical offices that care about people's constitutional rights and want to make their lives better, not worse.

Speaker 1:

Yeah, yeah, exactly, and it matters that we have folks like both of you who are willing to stand up for what's right, to stand up for your families as April pointed out, because that's what what this is about and to stand up for fundamental right. Thank you both for everything that you did for our country. You're both patriots as far as I'm concerned, and I am a little jealous because you got to hang out with Dana in a court case for three and a half years.

Speaker 6:

Listen, I'm not going to sugarcoat it. We had some good times.

Speaker 2:

We had some good times. We had some good times we had some good times.

Speaker 2:

We had some good times. We had some good times, Boy, when they, you know, first of all, when they use the phrase don't make a federal case out of it. There's a reason for that, and you know it really. You talk about this being a roller coaster. It truly was, but, like I said, none of this would have happened, and none of it would have happened in the way it did, if it had not been for the courage of April and Jane and their family, and you know it's. It was an unbelievable experience and you guys were quite literally the perfect plaintiffs. Thank you.

Speaker 6:

Thank you, Well thank you both for joining us.

Speaker 1:

We really appreciate you. Here's to Obergefell, the case that should have been called DeBoer.

Speaker 2:

That's right, and happy early anniversary to you guys. Thank you, thanks, you too, thank you.

Speaker 3:

Thanks for joining us. Gentlemen from California is recognized.

Speaker 5:

The gentleman from California is recognized. Mr Speaker, I rise today to enter the following words into the congressional record no union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness. Excluded from one of civilization's oldest institutions, they ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Speaker 5:

The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered. These words, mr Speaker, were written by Supreme Court Justice Anthony Kennedy in his Obergefell versus Hodges ruling, and they embody what the LGBT community has pursued for decades equality under the law. Thank you, and I yield back the balance of my time. Gentleman yields back his time.

Speaker 1:

So this marks the end of our special two-part Pride Month series here on Pantsuits and Lawsuits. We really appreciate you tuning in.

Speaker 2:

Yeah, it has been great reminiscing with everyone about how far we've come in the last decade. Up until very recent months and until next time this has been AG.

Speaker 1:

Nessel and AG Mays for Pantsuits and Lawsuits.

Speaker 2:

Signing off.