June 6, 2025 • 23 mins
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.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:05):
Hello listeners and thank you for tuning in for this
week's episode.
Speaker 2 (00:09):
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 landmarkdecision in Obergefell
legalizing same-sex marriageacross the country.
Speaker 1 (00:28):
And I will note this is the gayest AG podcast in
America, so it's really a goodplace to tune in for this.
Speaker 2 (00:37):
I think that's you know, empirically true.
Speaker 4 (00:58):
Yes, I would agree.
The Supreme Court makes alandmark decision.
In a 5-4 vote the justicesruled same-sex marriage is legal
in the US.
Speaker 2 (01:07):
That means 14 states, including Michigan that have
banned Same-sex marriage is nowlegal across the country.
By a 5-4 vote, the US SupremeCourt ruled that same-sex
couples you can hear the cheerin the crowd.
Speaker 4 (01:16):
A very dramatic moment here A 5-4 decision,
written by Justice AnthonyKennedy.
This is a total victory for theadvocates of same-sex marriage.
Gay marriages nationwide.
In a 5-4 decision the justiceruled every gay couple in
America has the right to getmarried, no matter where they
live.
Speaker 3 (01:34):
They say this is not just about marriage between two
men or two women.
This is about the over 1,000rights that come along with it.
Speaker 4 (01:43):
Now that historic Supreme Court decision
legalizing same-sex marriageacross the land and it's
profound.
The five to four vote in manyways reflecting the huge
societal shift of the last 20years.
The president saying todaythere are days like this when
that slow, steady effort isrewarded with justice that
arrives like a thunderbolt.
Speaker 3 (02:02):
This is also a great day for our Constitution, Make
no mistake about it.
Today, the court stood by aprinciple in this nation that we
do not tolerate laws thatdisadvantage people because of
who they are.
So it is a day for equality,for liberty and for justice
under law.
Speaker 2 (02:22):
Crying tears of joy, just absolute.
I'm shaken right now, just fromjoy.
It's the greatest gift possible.
You know, a few years ago Inever imagined I would be able
to get married.
I don't think it's quite set inyet.
Speaker 1 (02:36):
I was talking to the Washtenaw County Clerk's Office
and they have extra employeeslined up today because they are
expecting a lot of people to getmarried.
Speaker 2 (02:44):
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 noexception, but tell us a little
bit about what was going on inMichigan and how you know how
(03:06):
the law in this area evolved.
Speaker 1 (03:09):
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
(03:35):
kind for the LGBTQ population.
And it wasn't just that, we hada marriage ban, which, of
course, like 35 states in thecountry, had marriage bans
mostly from 2004, when, you know, part of Karl Rove's strategy
to reelect George W Bush was toput all of these same-sex
marriage bans into stateconstitutions, even though most
states already it wasstatutorily banned.
Michigan was one of thosestates, and I remember very
(03:58):
firmly being so disappointedwith that passed in Michigan,
but just double-checking myparents' absentee ballot to make
sure that they weren'taccidentally 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 notthe right to marry, we also
(04:19):
banned domestic partnerships,and because of the law on
marriage, couples could notadopt children together who were
unmarried, and that meant thatany same-sex couples couldn't.
And so you had this set ofcircumstances where there were
no protections of any kindwhatsoever for same-sex couples
(04:43):
and the children that they wereraising together, and that was
not the case for most otherstates.
There was some mechanism in moststates almost every state but
Michigan to have at least somesort of legal rights to a child
that you were raising.
But not in the state ofMichigan.
And I had actually just lost acase in the state courts that
(05:03):
dealt with a couple who wereraising three children together
and they split up and thenon-biological parents got a PPO
against the other parents.
And you know I was fightingthat out under our custody laws
and ultimately lost that case inthe state courts and
(05:24):
unfortunately my client neversaw her three kids again after
that.
But it became more clear to methan ever how horrible that was,
not just, of course, to aparent who was raising a child,
but to a child who would losetheir parent forever because one
of their parents had no legalrights of any kind to them.
But as I often say and this issort of a recurring theme in the
(05:46):
democratic AG world, you can'twin a case you never file and I,
even though I was at the timejust in very small practice and
certainly not part of some bigLGBTQ or civil rights
organization all of thoseorganizations had turned down
any sort of effort to challengethe ban on same-sex marriage or
(06:08):
the ban on adoption for same-sexcouples in Michigan because,
you may know, michigan iscontained within the Sixth
Circuit, which is not known tobe historically a very
progressive circuit, and theydid not ever want to bring a
case for the sick.
So what we saw as time went on,all these great cases that went
through the first circuit andthe second circuit and the ninth
(06:30):
circuit and you had all kindsof rights that were, you know,
percolating up for same-sexcouples and their families in
states throughout the country,but not here in Michigan.
And I would get very upset andsay, look, I know we're a
flyover state, but it doesn'tmean that same-sex couples here
don't deserve to have any rights.
And so, finally, myself and awoman who also rented office
(06:55):
space in the same office where Iwas in Detroit, we just decided
you know what the heck?
You know what do we have tolose?
We can't.
We have zero rights in thisstate.
We can't do like worse thanzero.
What's worse than zero?
I know that people thought Iwas crazy, but I said from the
(07:22):
very beginning, as soon as I metApril and Jane, I'm telling you
, they walked into my office, wediscussed what concerns they
had.
I've brought to them this crazyidea of filing this federal
lawsuit which they'll tell youabout, and I know they had to
think long and hard aboutwhether they wanted to do it or
not.
Speaker 2 (07:40):
I was going to say can I ask you, can I interrupt?
Did you find them or did theyfind you?
Speaker 1 (07:50):
They just walked into my office, they made an
appointment.
They wanted they had anear-death experience where they
almost got ran off the road,wow and they wanted to try to
formulate some legal protectionsfor their children if something
were to happen to one or theother of them.
And that's when I always had tobreak it to couples like April
and Jane, like I'm sorry,there's nothing that I can do to
really help you because thecourt can totally disregard
whatever your instructions are,because you technically don't
(08:13):
have any legal rights to thesekids.
And but I brought this up tothem that day.
I said to people this case isgoing to go to the United States
Supreme Court and I just Idon't know, I just knew that
that this was the case.
And how could you?
Speaker 2 (08:31):
know that, like I'm just, was that sort of a
metaphysical sort of experiencethat you had, or on the, on the
merits, like how could you knowthat something came over you and
it was.
Speaker 1 (08:43):
First of all, they were the perfect couple in terms
of their circumstances, butthey were the perfect people,
they were the perfect vehiclefor the case.
But also, I mean, you had thisunusual set of circumstances
here.
They were asked by the state ofMichigan to take these abandoned
and surrendered children intotheir homes to raise them
because as nurses as NICU nurses, emergency room nurses with
(09:03):
these special needs children,babies, infants they were
uniquely situated to raise thembecause as nurses as NICU nurses
, emergency room nurses withthese special needs children,
babies, infants they wereuniquely situated to raise these
children.
So for the state of Michigan tosay we want you to raise these
kids as foster kids, but nowwe're not going to let you adopt
those kids that, candidly, youlove and you've raised them as
your own but no one else wants,but now we're not going to let
(09:25):
you have legal rights to them,it was so plainly ridiculous on
every level that I thoughtthere's no way I can't get a
majority of justices on theSupreme Court, but just the
general public, to understandthe absurdity in the law that
would stop these wonderfulpeople who, by the way, the
state of Michigan, theDepartment of Attorney General,
stipulated that they wereexcellent parents, stipulated to
(09:48):
it, did not contest that theywere wonderful parents to their
children.
Speaker 2 (09:52):
That is an amazing case on the facts yes, I can see
it.
Speaker 1 (09:57):
I just knew it and I knew, at least at that time,
that we had at least five voteson the Supreme Court and I knew
that if we did a good enough jobin the pleadings and in the
arguments and in the claims andin presenting the evidence in
court, I just knew that it's notjust that the courts would be
on our side, but the publicwould demand it Interesting.
Speaker 2 (10:26):
Well, it's really interesting to me.
So, as you made it clear thatyou were going to take this case
and you were going to do thiscase, did you get direct
pushback from organizations thatwere 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 (10:43):
The pushback we received was so significant make
it.
The pushback we received was sosignificant.
I would say that it was moretime, effort and energy to
combat those groups the groupsthat we all know about and they
still exist than it was filingthe case against the government,
because we were battling it ontwo fronts.
They were so certain that wewere going to lose in the Sixth
(11:04):
Circuit and, as it turned out,they were right.
But it's only because we lostin the Sixth Circuit.
After having our trial, we wereonly one of three trials in
history in regard to the issueof marriage equality.
The split in the circuit, as youknow, is what causes the case
(11:25):
to then go to the United StatesSupreme Court.
So all the Sixth Circuit casesMichigan, Ohio, tennessee,
kentucky all ended up beingconsolidated and going to the
United States Supreme Court.
The Ohio case was theObergefell case, our case, and I
probably told you this storymany times.
Initially it was called DeBorerv Snyder.
(11:45):
It was the Michigan case and wefiled our petition two hours
later than Ohio, so it gotflipped in the caption.
But if you read Obergefell vHodges and just for posterity's
sake I suggest everybody do thatit's really not about Everybody
go read it, read it tonight.
Read it tonight.
It's about April and Jane andtheir family, and that is what
(12:08):
it's about.
And we were the only ones wehad a trial transcript.
Our judge made sure that wewent to trial because he wanted
to have a good factual recordupon which to base his ruling.
Yeah, it was a fascinatingtrial.
It took place during the polarvortex of 2014.
Like, literally, there was apolar vortex that's right During
the polar vortex of 2014.
Like, literally, there was apolar vortex that's right During
(12:28):
the polar vortex.
Witnesses that came in fromCalifornia and Texas and I
remember them saying like wow,it's really cold in Michigan.
I'm like, well, it's notusually negative 40, but it is
today.
But because, literally, hellwas freezing over or something.
Speaker 2 (12:45):
What year?
Speaker 1 (12:45):
was the trial?
Again, what year was your trial?
We tried the case in 2014.
Okay, and then it went to theSupreme Court the following year
in April of 2015.
So we argued the case in Aprilof 2015.
And then, at one of the verylast days of that term, in late
(13:06):
June of 2015 is when ourdecision came down.
It was a 5-4 decision, but wewon it.
Speaker 2 (13:14):
Do you remember where you were when you heard, when
you first heard about it?
Speaker 1 (13:18):
Do I.
We have lots of video of it andin fact maybe we can try an
overlay videotape of thedecision coming in, because you
can see it live.
It's me and my co-counsel, andApril and Jane, and we're
watching the SCOTUS blog on thewall on a screen and it was the
very first decision that came inand it was yeah, it was an
(13:43):
amazing day.
The other thing I will tell youabout that day is that a number
of the local clerks just set upshot in this courtyard where we
were receiving the case in, andyou had couples that had been
together for 40, 50, 60 yearsthat got married that day, one
after the other.
Wow, that day.
Speaker 2 (14:02):
That day?
Yeah, did you do the ceremoniesfor any of them that day?
Yeah, did you do the ceremoniesfor any of them?
Speaker 1 (14:08):
No, I don't think I had applied for my ministerial
authority to officiate marriagesat that point, but I watched
lots of the local mayorsmarrying long suffering couples
and it was, I will say, to thisday.
(14:28):
I mean, I've been elected nowtwice, uh, attorney general, and
I've had other interestingthings happen in my time in my
career.
It was the best day of my lifewas it really?
absolutely wow, that's saying alot yeah, it was, it was, it was
an incredible, I mean, to workon something so hard, but not
just that something that is someaningful to so many people, so
life-changing and I would saythis and I know that there are
(14:52):
people, obviously, that havedifferent viewpoints on it
Something that, to me, was justso overpoweringly positive and
made people so happy and madepeople's lives so complete and,
I maintain, helped so manypeople but hurt no one,
literally, yeah, exactly.
Speaker 2 (15:18):
I mean, we had, I guess, kind of a similar
trajectory in Arizona, althoughwith a few differences.
We had statutes that had beenpassed here back in 1996,
banning gay marriage, and it'sinteresting because I guess it
took an extra four years.
You guys got your ban was it aconstitutional ban in 2004?
(15:41):
Well, ours didn't happen until2008.
So I don't, I'm not sure ifthey tried earlier or they just
didn't get around to tryinguntil 2008 maybe they just
didn't get the signatures, orsomething maybe, yeah, I mean,
we, yeah.
So, and that passed in 2008.
Well, it was.
It defined marriage as betweena man and a woman, um, union of
(16:06):
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 wereseveral cases that were brought
out here, probably similar toyours, um, and a federal judge
declared our amendmentunconstitutional.
(16:27):
So, if you know, obviously thatpresents huge problems for us
if obergefell were to beoverturned yeah, it's still on
the books, yeah, never beenrepealed.
Speaker 1 (16:40):
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 knowwhat, with, of course, a Supreme
Court that looks poised topotentially overturn Obergefell.
And obviously we've had JudgeThomas, you know, in the Dobbs
case, specifically say likesomeone, bring me a vehicle with
(17:00):
which to overturn Obergefell,and not just Obergefell, of
course, but Griswold vConnecticut, the birth control
case.
Speaker 2 (17:08):
Birth control.
I mean all of these substantivedue process rights at risk here
.
I think that's really important.
A couple of things I think weshould also note here, in
addition to the fact that thisis a fundamental right.
But number one, we're not justtalking about gay marriage.
We're talking about otherrights that people very much
(17:30):
take for granted, likecontraception and the ability to
use contraception.
I think it's important to note.
(17:55):
You know the economic boon thatmarriage is for states.
There have been numerousstudies that show, as I know you
know, that same-sex marriagebrings huge economic benefits to
all of our states as well.
In fact, one study the WilliamsInstitute stated that it
boosted local economies by $3.8billion with a B and supported
an estimated 45,000 jobs.
(18:18):
I'm assuming that's a low ballfigure.
Speaker 1 (18:22):
Well, and there's more to it than that it's.
It's and this was part of ourcase that was so compelling is
that same-sex couples were morelikely to adopt from foster care
than opposite sex couples, andsame-sex couples were more
likely to take children that Ihate to phrase it this way, but
I guess we're less desirable inin terms of having physical
(18:43):
issues or Greater challengesyeah, and they were more likely
to take those children intotheir homes and to adopt them.
And, as you know, the fostercare system I mean it's
enormously expensive to keepkids in foster care.
Of course it's preferential tohave people adopt them and for
them not to be wards of thestate anymore.
And then those children, whenthey get adopted, their outcomes
(19:06):
they are so much better,they're going to have such a
brighter future because theyhave permanent loving homes.
So that was really a win-winand a big part of our case as
well, and it also helped thestability of those families.
So you have families that weremore likely to stay together in
the event that you had a legalmarriage, not to mention all the
(19:26):
benefits that come withmarriage, of course you know,
including things like, you know,health insurance and you know
and many other things that are.
We tie in society directly to alegal marriage.
It created better stability inthose families and more stable
families.
That's just better for ourcommunities And's just better
for our communities and it'sbetter for the nation.
(20:00):
And I just know for mepersonally how my life changed
and I will say this.
I mean, as you know, we've bothbeen single parents.
Being a single parent is hardand I mean props to everyone out
(20:24):
there who voluntarily wants tobe a single parent.
But you tell people they haveto be single parents, that you
cannot be part of a marriedcouple legally raising kids
together.
What a horrible thing for yourstate to tell you that you're
not allowed to have a legalrelationship.
And I remember shortly afterthe case when my wife and I were
(20:46):
married it's our, you knowworking map in our 10 year
anniversary to just yeah.
Speaker 2 (20:50):
I guess, so.
Speaker 1 (20:51):
But shortly thereafter, when she was able to
adopt our children, I had areally big jury trial at the
same time as one of our sonsneeded surgery.
Oh wow, and the feeling ofbeing able to say how about you
take care of this?
I got to go try this case andyou and I can't be there for for
(21:12):
the entirety of the time thatour son is in the hospital.
But now there's someone elsewho can, and I didn't lose my
job you know I could still havea job and and have somebody be
with our son in the hospital,and that sounds like not a very
big deal, right.
Speaker 2 (21:28):
Oh, trust me, I know it's a big deal.
Being the one amongst us who'snot married and never has been,
and is a single mom.
It's a very big deal.
Speaker 1 (21:36):
But, I just remember thinking like why would you put
people in a position where theycouldn't have this, put people
in a position where theycouldn't have this?
And you know the fact that thatwe were able to.
Then you know, I raised mychildren then into adulthood
having two legal parents.
As, as you know, I mean it.
It it's a really big deal whenyou can have another person
(21:57):
there with legal who has theability to make those decisions
for your children and help inall the different ways.
It was so meaningful for me andmy life for a million different
reasons and it changedeverything about the dynamics of
our family, and so I can say,like I am a living, breathing
example of how important it isthat people have constitutional
(22:20):
rights to things like theability to have legal families.
Speaker 2 (22:23):
Yeah, that's a wrap on this episode of Pantsuits and
Lawsuits.
This special two-part PrideMonth series is all about the
fight for marriage equality whatled us here and what's at risk
if we lose ground.
Later this month we're backwith part two, a powerful
(22:47):
conversation with AG Nessel andher former clients April and
Jane, whose fight to protecttheir family went all the way to
the United States Supreme Courtand secured the freedom to
marry for same-sex couplesnationwide.
Until then, happy Pride andthanks for listening Next week
(23:11):
on Pantsuits and Lawsuits.
Speaker 3 (23:15):
Most people understood.
They realized that we weren'treally out for marriage per se,
but it was to protect the kids.
Speaker 2 (23:24):
Once that was explained, people were like okay
, I can see why you're doingthis Once we got to the Supreme
Court.
Speaker 3 (23:29):
wow, what a feeling.
I mean like we're just twoparents that want our kids to
have safeties.
Speaker 1 (23:36):
How are we in the Supreme Court?
It was just crazy.
Hello listeners and thank you for tuning in for this
week's episode.
Speaker 2 (00:09):
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 landmarkdecision in Obergefell
legalizing same-sex marriageacross the country.
Speaker 1 (00:28):
And I will note this is the gayest AG podcast in
America, so it's really a goodplace to tune in for this.
Speaker 2 (00:37):
I think that's you know, empirically true.
Speaker 4 (00:58):
Yes, I would agree.
The Supreme Court makes alandmark decision.
In a 5-4 vote the justicesruled same-sex marriage is legal
in the US.
Speaker 2 (01:07):
That means 14 states, including Michigan that have
banned Same-sex marriage is nowlegal across the country.
By a 5-4 vote, the US SupremeCourt ruled that same-sex
couples you can hear the cheerin the crowd.
Speaker 4 (01:16):
A very dramatic moment here A 5-4 decision,
written by Justice AnthonyKennedy.
This is a total victory for theadvocates of same-sex marriage.
Gay marriages nationwide.
In a 5-4 decision the justiceruled every gay couple in
America has the right to getmarried, no matter where they
live.
Speaker 3 (01:34):
They say this is not just about marriage between two
men or two women.
This is about the over 1,000rights that come along with it.
Speaker 4 (01:43):
Now that historic Supreme Court decision
legalizing same-sex marriageacross the land and it's
profound.
The five to four vote in manyways reflecting the huge
societal shift of the last 20years.
The president saying todaythere are days like this when
that slow, steady effort isrewarded with justice that
arrives like a thunderbolt.
Speaker 3 (02:02):
This is also a great day for our Constitution, Make
no mistake about it.
Today, the court stood by aprinciple in this nation that we
do not tolerate laws thatdisadvantage people because of
who they are.
So it is a day for equality,for liberty and for justice
under law.
Speaker 2 (02:22):
Crying tears of joy, just absolute.
I'm shaken right now, just fromjoy.
It's the greatest gift possible.
You know, a few years ago Inever imagined I would be able
to get married.
I don't think it's quite set inyet.
Speaker 1 (02:36):
I was talking to the Washtenaw County Clerk's Office
and they have extra employeeslined up today because they are
expecting a lot of people to getmarried.
Speaker 2 (02:44):
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 noexception, but tell us a little
bit about what was going on inMichigan and how you know how
(03:06):
the law in this area evolved.
Speaker 1 (03:09):
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
(03:35):
kind for the LGBTQ population.
And it wasn't just that, we hada marriage ban, which, of
course, like 35 states in thecountry, had marriage bans
mostly from 2004, when, you know, part of Karl Rove's strategy
to reelect George W Bush was toput all of these same-sex
marriage bans into stateconstitutions, even though most
states already it wasstatutorily banned.
Michigan was one of thosestates, and I remember very
(03:58):
firmly being so disappointedwith that passed in Michigan,
but just double-checking myparents' absentee ballot to make
sure that they weren'taccidentally 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 notthe right to marry, we also
(04:19):
banned domestic partnerships,and because of the law on
marriage, couples could notadopt children together who were
unmarried, and that meant thatany same-sex couples couldn't.
And so you had this set ofcircumstances where there were
no protections of any kindwhatsoever for same-sex couples
(04:43):
and the children that they wereraising together, and that was
not the case for most otherstates.
There was some mechanism in moststates almost every state but
Michigan to have at least somesort of legal rights to a child
that you were raising.
But not in the state ofMichigan.
And I had actually just lost acase in the state courts that
(05:03):
dealt with a couple who wereraising three children together
and they split up and thenon-biological parents got a PPO
against the other parents.
And you know I was fightingthat out under our custody laws
and ultimately lost that case inthe state courts and
(05:24):
unfortunately my client neversaw her three kids again after
that.
But it became more clear to methan ever how horrible that was,
not just, of course, to aparent who was raising a child,
but to a child who would losetheir parent forever because one
of their parents had no legalrights of any kind to them.
But as I often say and this issort of a recurring theme in the
(05:46):
democratic AG world, you can'twin a case you never file and I,
even though I was at the timejust in very small practice and
certainly not part of some bigLGBTQ or civil rights
organization all of thoseorganizations had turned down
any sort of effort to challengethe ban on same-sex marriage or
(06:08):
the ban on adoption for same-sexcouples in Michigan because,
you may know, michigan iscontained within the Sixth
Circuit, which is not known tobe historically a very
progressive circuit, and theydid not ever want to bring a
case for the sick.
So what we saw as time went on,all these great cases that went
through the first circuit andthe second circuit and the ninth
(06:30):
circuit and you had all kindsof rights that were, you know,
percolating up for same-sexcouples and their families in
states throughout the country,but not here in Michigan.
And I would get very upset andsay, look, I know we're a
flyover state, but it doesn'tmean that same-sex couples here
don't deserve to have any rights.
And so, finally, myself and awoman who also rented office
(06:55):
space in the same office where Iwas in Detroit, we just decided
you know what the heck?
You know what do we have tolose?
We can't.
We have zero rights in thisstate.
We can't do like worse thanzero.
What's worse than zero?
I know that people thought Iwas crazy, but I said from the
(07:22):
very beginning, as soon as I metApril and Jane, I'm telling you
, they walked into my office, wediscussed what concerns they
had.
I've brought to them this crazyidea of filing this federal
lawsuit which they'll tell youabout, and I know they had to
think long and hard aboutwhether they wanted to do it or
not.
Speaker 2 (07:40):
I was going to say can I ask you, can I interrupt?
Did you find them or did theyfind you?
Speaker 1 (07:50):
They just walked into my office, they made an
appointment.
They wanted they had anear-death experience where they
almost got ran off the road,wow and they wanted to try to
formulate some legal protectionsfor their children if something
were to happen to one or theother of them.
And that's when I always had tobreak it to couples like April
and Jane, like I'm sorry,there's nothing that I can do to
really help you because thecourt can totally disregard
whatever your instructions are,because you technically don't
(08:13):
have any legal rights to thesekids.
And but I brought this up tothem that day.
I said to people this case isgoing to go to the United States
Supreme Court and I just Idon't know, I just knew that
that this was the case.
And how could you?
Speaker 2 (08:31):
know that, like I'm just, was that sort of a
metaphysical sort of experiencethat you had, or on the, on the
merits, like how could you knowthat something came over you and
it was.
Speaker 1 (08:43):
First of all, they were the perfect couple in terms
of their circumstances, butthey were the perfect people,
they were the perfect vehiclefor the case.
But also, I mean, you had thisunusual set of circumstances
here.
They were asked by the state ofMichigan to take these abandoned
and surrendered children intotheir homes to raise them
because as nurses as NICU nurses, emergency room nurses with
(09:03):
these special needs children,babies, infants they were
uniquely situated to raise thembecause as nurses as NICU nurses
, emergency room nurses withthese special needs children,
babies, infants they wereuniquely situated to raise these
children.
So for the state of Michigan tosay we want you to raise these
kids as foster kids, but nowwe're not going to let you adopt
those kids that, candidly, youlove and you've raised them as
your own but no one else wants,but now we're not going to let
(09:25):
you have legal rights to them,it was so plainly ridiculous on
every level that I thoughtthere's no way I can't get a
majority of justices on theSupreme Court, but just the
general public, to understandthe absurdity in the law that
would stop these wonderfulpeople who, by the way, the
state of Michigan, theDepartment of Attorney General,
stipulated that they wereexcellent parents, stipulated to
(09:48):
it, did not contest that theywere wonderful parents to their
children.
Speaker 2 (09:52):
That is an amazing case on the facts yes, I can see
it.
Speaker 1 (09:57):
I just knew it and I knew, at least at that time,
that we had at least five voteson the Supreme Court and I knew
that if we did a good enough jobin the pleadings and in the
arguments and in the claims andin presenting the evidence in
court, I just knew that it's notjust that the courts would be
on our side, but the publicwould demand it Interesting.
Speaker 2 (10:26):
Well, it's really interesting to me.
So, as you made it clear thatyou were going to take this case
and you were going to do thiscase, did you get direct
pushback from organizations thatwere 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 (10:43):
The pushback we received was so significant make
it.
The pushback we received was sosignificant.
I would say that it was moretime, effort and energy to
combat those groups the groupsthat we all know about and they
still exist than it was filingthe case against the government,
because we were battling it ontwo fronts.
They were so certain that wewere going to lose in the Sixth
(11:04):
Circuit and, as it turned out,they were right.
But it's only because we lostin the Sixth Circuit.
After having our trial, we wereonly one of three trials in
history in regard to the issueof marriage equality.
The split in the circuit, as youknow, is what causes the case
(11:25):
to then go to the United StatesSupreme Court.
So all the Sixth Circuit casesMichigan, Ohio, tennessee,
kentucky all ended up beingconsolidated and going to the
United States Supreme Court.
The Ohio case was theObergefell case, our case, and I
probably told you this storymany times.
Initially it was called DeBorerv Snyder.
(11:45):
It was the Michigan case and wefiled our petition two hours
later than Ohio, so it gotflipped in the caption.
But if you read Obergefell vHodges and just for posterity's
sake I suggest everybody do thatit's really not about Everybody
go read it, read it tonight.
Read it tonight.
It's about April and Jane andtheir family, and that is what
(12:08):
it's about.
And we were the only ones wehad a trial transcript.
Our judge made sure that wewent to trial because he wanted
to have a good factual recordupon which to base his ruling.
Yeah, it was a fascinatingtrial.
It took place during the polarvortex of 2014.
Like, literally, there was apolar vortex that's right During
the polar vortex of 2014.
Like, literally, there was apolar vortex that's right During
(12:28):
the polar vortex.
Witnesses that came in fromCalifornia and Texas and I
remember them saying like wow,it's really cold in Michigan.
I'm like, well, it's notusually negative 40, but it is
today.
But because, literally, hellwas freezing over or something.
Speaker 2 (12:45):
What year?
Speaker 1 (12:45):
was the trial?
Again, what year was your trial?
We tried the case in 2014.
Okay, and then it went to theSupreme Court the following year
in April of 2015.
So we argued the case in Aprilof 2015.
And then, at one of the verylast days of that term, in late
(13:06):
June of 2015 is when ourdecision came down.
It was a 5-4 decision, but wewon it.
Speaker 2 (13:14):
Do you remember where you were when you heard, when
you first heard about it?
Speaker 1 (13:18):
Do I.
We have lots of video of it andin fact maybe we can try an
overlay videotape of thedecision coming in, because you
can see it live.
It's me and my co-counsel, andApril and Jane, and we're
watching the SCOTUS blog on thewall on a screen and it was the
very first decision that came inand it was yeah, it was an
(13:43):
amazing day.
The other thing I will tell youabout that day is that a number
of the local clerks just set upshot in this courtyard where we
were receiving the case in, andyou had couples that had been
together for 40, 50, 60 yearsthat got married that day, one
after the other.
Wow, that day.
Speaker 2 (14:02):
That day?
Yeah, did you do the ceremoniesfor any of them that day?
Yeah, did you do the ceremoniesfor any of them?
Speaker 1 (14:08):
No, I don't think I had applied for my ministerial
authority to officiate marriagesat that point, but I watched
lots of the local mayorsmarrying long suffering couples
and it was, I will say, to thisday.
(14:28):
I mean, I've been elected nowtwice, uh, attorney general, and
I've had other interestingthings happen in my time in my
career.
It was the best day of my lifewas it really?
absolutely wow, that's saying alot yeah, it was, it was, it was
an incredible, I mean, to workon something so hard, but not
just that something that is someaningful to so many people, so
life-changing and I would saythis and I know that there are
(14:52):
people, obviously, that havedifferent viewpoints on it
Something that, to me, was justso overpoweringly positive and
made people so happy and madepeople's lives so complete and,
I maintain, helped so manypeople but hurt no one,
literally, yeah, exactly.
Speaker 2 (15:18):
I mean, we had, I guess, kind of a similar
trajectory in Arizona, althoughwith a few differences.
We had statutes that had beenpassed here back in 1996,
banning gay marriage, and it'sinteresting because I guess it
took an extra four years.
You guys got your ban was it aconstitutional ban in 2004?
(15:41):
Well, ours didn't happen until2008.
So I don't, I'm not sure ifthey tried earlier or they just
didn't get around to tryinguntil 2008 maybe they just
didn't get the signatures, orsomething maybe, yeah, I mean,
we, yeah.
So, and that passed in 2008.
Well, it was.
It defined marriage as betweena man and a woman, um, union of
(16:06):
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 wereseveral cases that were brought
out here, probably similar toyours, um, and a federal judge
declared our amendmentunconstitutional.
(16:27):
So, if you know, obviously thatpresents huge problems for us
if obergefell were to beoverturned yeah, it's still on
the books, yeah, never beenrepealed.
Speaker 1 (16:40):
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 knowwhat, with, of course, a Supreme
Court that looks poised topotentially overturn Obergefell.
And obviously we've had JudgeThomas, you know, in the Dobbs
case, specifically say likesomeone, bring me a vehicle with
(17:00):
which to overturn Obergefell,and not just Obergefell, of
course, but Griswold vConnecticut, the birth control
case.
Speaker 2 (17:08):
Birth control.
I mean all of these substantivedue process rights at risk here
.
I think that's really important.
A couple of things I think weshould also note here, in
addition to the fact that thisis a fundamental right.
But number one, we're not justtalking about gay marriage.
We're talking about otherrights that people very much
(17:30):
take for granted, likecontraception and the ability to
use contraception.
I think it's important to note.
(17:55):
You know the economic boon thatmarriage is for states.
There have been numerousstudies that show, as I know you
know, that same-sex marriagebrings huge economic benefits to
all of our states as well.
In fact, one study the WilliamsInstitute stated that it
boosted local economies by $3.8billion with a B and supported
an estimated 45,000 jobs.
(18:18):
I'm assuming that's a low ballfigure.
Speaker 1 (18:22):
Well, and there's more to it than that it's.
It's and this was part of ourcase that was so compelling is
that same-sex couples were morelikely to adopt from foster care
than opposite sex couples, andsame-sex couples were more
likely to take children that Ihate to phrase it this way, but
I guess we're less desirable inin terms of having physical
(18:43):
issues or Greater challengesyeah, and they were more likely
to take those children intotheir homes and to adopt them.
And, as you know, the fostercare system I mean it's
enormously expensive to keepkids in foster care.
Of course it's preferential tohave people adopt them and for
them not to be wards of thestate anymore.
And then those children, whenthey get adopted, their outcomes
(19:06):
they are so much better,they're going to have such a
brighter future because theyhave permanent loving homes.
So that was really a win-winand a big part of our case as
well, and it also helped thestability of those families.
So you have families that weremore likely to stay together in
the event that you had a legalmarriage, not to mention all the
(19:26):
benefits that come withmarriage, of course you know,
including things like, you know,health insurance and you know
and many other things that are.
We tie in society directly to alegal marriage.
It created better stability inthose families and more stable
families.
That's just better for ourcommunities And's just better
for our communities and it'sbetter for the nation.
(20:00):
And I just know for mepersonally how my life changed
and I will say this.
I mean, as you know, we've bothbeen single parents.
Being a single parent is hardand I mean props to everyone out
(20:24):
there who voluntarily wants tobe a single parent.
But you tell people they haveto be single parents, that you
cannot be part of a marriedcouple legally raising kids
together.
What a horrible thing for yourstate to tell you that you're
not allowed to have a legalrelationship.
And I remember shortly afterthe case when my wife and I were
(20:46):
married it's our, you knowworking map in our 10 year
anniversary to just yeah.
Speaker 2 (20:50):
I guess, so.
Speaker 1 (20:51):
But shortly thereafter, when she was able to
adopt our children, I had areally big jury trial at the
same time as one of our sonsneeded surgery.
Oh wow, and the feeling ofbeing able to say how about you
take care of this?
I got to go try this case andyou and I can't be there for for
(21:12):
the entirety of the time thatour son is in the hospital.
But now there's someone elsewho can, and I didn't lose my
job you know I could still havea job and and have somebody be
with our son in the hospital,and that sounds like not a very
big deal, right.
Speaker 2 (21:28):
Oh, trust me, I know it's a big deal.
Being the one amongst us who'snot married and never has been,
and is a single mom.
It's a very big deal.
Speaker 1 (21:36):
But, I just remember thinking like why would you put
people in a position where theycouldn't have this, put people
in a position where theycouldn't have this?
And you know the fact that thatwe were able to.
Then you know, I raised mychildren then into adulthood
having two legal parents.
As, as you know, I mean it.
It it's a really big deal whenyou can have another person
(21:57):
there with legal who has theability to make those decisions
for your children and help inall the different ways.
It was so meaningful for me andmy life for a million different
reasons and it changedeverything about the dynamics of
our family, and so I can say,like I am a living, breathing
example of how important it isthat people have constitutional
(22:20):
rights to things like theability to have legal families.
Speaker 2 (22:23):
Yeah, that's a wrap on this episode of Pantsuits and
Lawsuits.
This special two-part PrideMonth series is all about the
fight for marriage equality whatled us here and what's at risk
if we lose ground.
Later this month we're backwith part two, a powerful
(22:47):
conversation with AG Nessel andher former clients April and
Jane, whose fight to protecttheir family went all the way to
the United States Supreme Courtand secured the freedom to
marry for same-sex couplesnationwide.
Until then, happy Pride andthanks for listening Next week
(23:11):
on Pantsuits and Lawsuits.
Speaker 3 (23:15):
Most people understood.
They realized that we weren'treally out for marriage per se,
but it was to protect the kids.
Speaker 2 (23:24):
Once that was explained, people were like okay
, I can see why you're doingthis Once we got to the Supreme
Court.
Speaker 3 (23:29):
wow, what a feeling.
I mean like we're just twoparents that want our kids to
have safeties.
Speaker 1 (23:36):
How are we in the Supreme Court?
It was just crazy.
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