Overdue Process: The Louisville attorneys involved in Marriage Equality

It’s the kind of event that beckoned an entire nation to pause, a day cemented in a country’s history. We do not recall June 26, 2015, for a tragedy, terrorism or scandal – the happenings that all too often permeate our headlines and memories – but for the long-deserved inclusion finally afforded to countless Americans. The day the Supreme Court of the United States ruled on Obergefell v. Hodges achieved a turning point so belated and monumental as to beckon the question in retrospect, “Where were you the day love won?”

For five Louisville attorneys, that day was the triumph after a years-long battle for their clients and a decades-long struggle for the LGBTQ community. After weeks spent attentively waiting for a verdict, Shannon Fauver, Dawn Elliott, Dan Canon, Laura Landenwich and Joe Dunman learned of their victory along with the rest of the country in a case that had seized their time, energy and careers since 2013. Over a year after the ruling and with varying turns of phrase, they echo the same sentiment of gratitude for their clients and for what Dunman calls “the win of a lifetime,” despite the setbacks and discouragement.

Shannon Fauver and Dawn Elliott
Shannon Fauver and Dawn Elliott

According to Landenwich, the requisite goal to help and not hurt LGBTQ civil rights made it a formidable undertaking. “If you take a case and lose it, that makes it really hard for someone to come behind you and win it. A legal precedent against you is really difficult to overcome. If you don’t have the right clients, the right claims, the right judge, and all of those things work against you, you can really damage the movement.”

Many probably know at least some portion of the general proceedings, but perhaps far fewer are aware of the legal minds and human compulsions behind bringing marriage equality to the state Mark Twain called “20 years behind.” In speaking to these five attorneys, one is at first overwhelmed by a spinning collective intellect before discovering threads of fate interwoven in the stories – a sense that this case was meant to play out as it did.

After Fauver tackled the first same-sex bankruptcy in Kentucky, she and Elliott watched intently as United States v. Windsor unfolded in the Supreme Court. Edith Windsor, who had been married to her wife, Thea Spyer, in Canada, sought to claim the federal estate tax exemption for surviving spouses after Spyer passed away. She was denied per the Defense of Marriage Act, which held that the term “spouse” only applied to opposite-sex marriages. In 2010, at 81 years old, she filed a lawsuit against the federal government in New York that climbed the judicial ladder for three years. On June 26, 2013, the Supreme Court ruled in her favor and struck down Section 3 of DOMA, rendering it futile exactly two years before Obergefell made it obsolete entirely.

Fauver recalls that the decision to pursue marriage equality was as simple as watching Windsor open the door, while the execution was anything but. “We’re sitting there the day it was ruled on and saying to each other, ‘Somebody should file a lawsuit. We should file a lawsuit.’” In July 2013, Greg Bourke and Michael DeLeon filed to have their marriage recognized by the Commonwealth of Kentucky with the backing of Fauver Law Office. Though they wed in Canada in 2004, they held that lack of recognition in their home state denied them many of the rights and privileges afforded to opposite-sex couples. “Our plaintiffs were heroic,” Fauver says. “They had a love for each other and for their children. I’ll admit, they had a stronger belief in our justice system than I did.”

From there, the case swelled. “We knew we had law degrees and it was the right thing to do and we were intelligent enough to figure it out,” Elliott recalls, “but at the end of the day, we practiced so many different areas of law with clients that we had obligations to. So we knew that to take this on like we’d already done, it was going to take a lot.”

“We were dissuaded from filing by both local and national organizations,” Fauver says. “They didn’t think Kentucky was the right place. We were told we couldn’t win, that we’d set back the civil rights movement. But our opinion was that it couldn’t be any worse for our clients than the way it was.”

Dan Canon
Dan Canon

Though Fauver’s and Elliott’s expertise covers federal and family law, they’re quick to admit they’re not civil rights attorneys. “We didn’t even know if we’d get paid!” Fauver says, cementing the commitment. “In order to get paid, your case has to be the one that wins. Some clients left and we dropped some clients because they had issues with what we were doing, so after about six months, we needed some help. I put it on a listserv that I’m on for plaintiffs’ attorneys, and Dan called.”

From their offices at Clay Daniel Walton Adams, PLC on Fourth Street, Canon, Landenwich and Dunman specialize in civil rights litigation. Up to the point of the team’s merging, Fauver and Elliott had met with other attorneys who either rejected their efforts or wanted simply to take the case without them.

Landenwich explains that while they had hesitations, the decision to get involved stemmed from a desire to nurture the seed already planted. “We had a lot of reservations about it for a variety of reasons,” she says. “The primary one was that we cared about the outcome and we recognized that it was going to affect more than just the people we represented – it was going to have an effect on our whole society. As it turned out, the case had already been filed and needed some help. We could improve the chances that it would prevail.”

Bourke v. Beshear evolved to consist of four couples all fighting for recognition of their marriages and was eventually joined by Love v. Beshear, a case in which two couples sued for the right to marry in Kentucky. Of the six cases representing the four states in the Sixth Circuit – Kentucky, Tennessee, Ohio and Michigan – that were all consolidated into Obergefell, only Kentucky filed a lawsuit for the right to marry; the other five revolved around same-sex marriage recognition and the rights stemming from it. Fauver and Elliott agree that the addition was a crucial one: “If we hadn’t asked both questions – and maybe it was because we didn’t know any better – this case would not have gone to the Supreme Court.”

“We needed to make sure the case was consolidated and could be dealt with all at once by the judge,” Dunman explains. “At the time we were in front of Judge Heyburn, we were a little worried because he was a Republican appointee. Most of the judges in Kentucky are very conservative. We were cautious of that, so we wanted to make sure the case was set up perfectly for him to rule on – just make the arguments that the Kentucky laws were unconstitutional. They were in violation of the equal protection guarantee of the 14th Amendment and due process. We suggested that preventing people from being married stole their liberty without a good reason to do so.”

Despite the team’s initial concern, Judge Heyburn proved ideal. He ruled in favor of the plaintiffs, declaring that Kentucky’s denial of recognition for out-of-state same-sex marriages was unconstitutional and later, that Kentucky’s laws banning same-sex marriage violated the Equal Protection Clause of the 14th Amendment and were therefore “void and unenforceable.”

Joe Dunman
Joe Dunman

“The Sixth Circuit overall has got a reputation as being extremely conservative,” Canon says. “There’s a very good possibility that if we had drawn a different judge here in the western district of Kentucky, we’d have had a very different result from the onset. At the time that we got involved in this case, we didn’t foresee that just about every federal judge in the country was going to be on the side of marriage equality.”

That fearsome reputation for conservatism was not unfounded. The state appealed Heyburn’s decision to the Sixth Circuit Court of Appeals, which overturned his rulings and upheld the bans in Kentucky, along with the other three states. The resulting circuit split meant an inevitable journey to the Supreme Court, and we all know that happy, hard-won ending. One can’t help but wonder, however, if the right to marry might not have happened without Judge Heyburn’s defiance of expectation given that Love v. Beshear was the only case filed for licensure.

Elliott recounts that the judge’s rulings were particularly significant not only because he was a historically conservative judge but also because he was nearing the end of his life. “He knew this was going to be his legacy,” she says. “We don’t know his personal beliefs, but based on the law alone, he understood it was wrong. Any judge that follows the rule of the law and doesn’t rule by their beliefs or peer pressure – I respect completely, even if it’s the wrong decision morally.”

Judge Heyburn listened to their oral arguments before the Supreme Court on April 28, 2015. He died the next day.

Two months after hearing the case, the Supreme Court held in a 5-4 decision that the 14th Amendment requires all states to grant same-sex marriages and recognize same-sex marriages granted in other states.

A brief moment of jubilation preceded a massive press conference, during which Governor Beshear told clerks throughout the state to start issuing marriage licenses. Landenwich reminisces about two of their clients, Timothy Love (the named plaintiff in the right-to-marry case) and Lawrence Ysunza, inviting the legal team to witness their immediate union. “We had a little impromptu parade from our office at Fourth Street Live! down to the clerk’s office,” she says. “It was lunchtime, so people were out. They were honking and waving and it really was like a parade.”

Once they arrived, their clients were first in line at Metro Hall. Dunman recalls waiting for the clerks to print new licenses because the ones they had only said “husband” and “wife.” He says Mayor Fischer came down with two of his employees eager to marry their own respective partners. “The Mayor brought down three bottles of champagne,” he says. “All three couples got their licenses at the same time.”

Such profound progress was not without backlash, however, and most Kentuckians probably remember seeing a certain county clerk permeate the media with her refusal to issue licenses as ordered. As Dunman tells it, the dream team still had work to do. “Dan, Laura and I joined the ACLU to sue Kim Davis,” he says. “We had the opportunity to enforce the victory that we had achieved for our clients. Government officials can’t just exercise their religious rights to the detriment of other people. She got lots of good photo ops, but in the courtroom, we won every step of the way.”

Laura Landenwich
Laura Landenwich

For all their victories, all five attorneys are quick to give the most credit to their clients, people whose lives and families were laid out for assessment at the risk of someone saying their love was invalid. According to Dunman, when they interviewed the clients at the beginning of litigation, they asked for examples of direct discrimination or public mistreatment. Over time, it became clear that the common injustice was the clients’ need to self-police. “They go out but don’t hug or kiss or touch just because they’re afraid of the stigma,” Dunman says. “It’s something that even they didn’t think about very often because it becomes so ingrained. That stigma is not going to fade overnight. Having a black president didn’t erase racism and having marriage equality is not going to erase homophobia.”

This case brought and still brings emotion from these attorneys, people whose careers associate them with a stereotype of coldness, protocol and an insistent clinging to all things factual. Words like “overwhelming” and “consuming” overlap their memories, and they all acknowledge a feeling of luck for achieving what so many lawyers set out to do but don’t get the chance.

“I went into law school not even thinking I was going to practice,” Canon admits. “I figured I’d go to some nonprofit organization because I didn’t realize you could make a living doing this. And what they say about people who go into law school is that the first year, you have all these wide-eyed optimists who want to help people. By the time you get through that three-year process of starving a student out and they’ve got loans to pay off, it’s very attractive to put on the golden handcuffs, go to work for a traditional firm and think, ‘I’ll get to that do-gooder stuff later.’”

For Elliott, the urge to do good was personal on more than one plane. As a black woman happily married to a white man, she understands that the battles fought before her time laid the groundwork for her own ability to affect change. “To me, it was, ‘I need to pay back the universe,’” she says. “Why is it that I can walk into a clerk’s office and get a marriage certificate and marry the person I love, but my best friend can’t marry the person he loves? It’s not right.”

The five attorneys agree that legal progress is not equivalent to social progress and continue to express optimism for what lies ahead. Landenwich encourages individuals in the LGBTQ community to thoroughly know and understand their rights, while Fauver and Elliott express hope for a future generation that balks at a long-gone notion of marriage inequality.

“Obergefell is just one step toward removing a lot of the stigmas that have been around forever,” Canon says. “It’s a big step, but it’s just a step.”
And yet, even one step seems like so much after an era of paralysis.

Photo by Tom Fougerousse, University of Louisville
Photo by Tom Fougerousse, University of Louisville