An excerpt from the book ‘Love Wins’

Book jacket of Love Wins: The Lovers, Lawyers and Activists who Brought the Landmark Case for Marriage Equality.
Book jacket of Love Wins: The Lovers, Lawyers and Activists who Brought the Landmark Case for Marriage Equality.

This is an excerpt from the book, “Love Wins – The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality,” by Debbie Cenziper and Jim Obergefell. This passage is from Chapter 19: Being There Again.

The three judges gathered in the robing room right after court adjourned and shut the door behind them, scattering a battery of anxious law clerks to their upstairs offices. Martha Craig Daughtrey hung up the black robe she had put on before the hearing and sat down at the conference table with her notes, first on Michigan, then Ohio, Kentucky, and Tennessee.

Alone in the long wood-paneled room, named for a closet of robes used by the sixteen judges on the Sixth Circuit, Judges Daughtrey, Cook, and Sutton would discuss the case for the first time. Then they would take a secret vote. If there was dissent, it was considered polite to speak up so that the presiding judge, in this case Jeffrey Sutton, could quickly decide who would write the court’s majority opinion, a massive research and writing assignment.

Judge Daughtrey knew that this would be her best chance to press the case for same-sex marriage because judges weren’t supposed to lobby colleagues individually after the vote. She had come to the hearing hoping that Judge Sutton would take her side and find the marriage bans unconstitutional. But his comments about the democratic process had been telling, and when he looked across the conference table and said that he was thinking about siding with the states—reversing the lower-court rulings — Judge Daughtrey was deeply disappointed.

She would try to move him anyway. She recounted the case of Jim Obergefell and John Arthur. “Jeff,” she said, pleading with the younger judge, “these two people were in love.” She walked back to her office alone a few minutes later, on the losing side of a 2–1 vote. Her disappointment had given way to indignation, and when she opened the door to her office and looked at her law clerks, she sighed and said, “I hoped he wouldn’t want to go against history.” Her feelings would spill into a blistering dissenting opinion that she would author in the coming weeks, starting with a quote by Benjamin Cardozo, who had succeeded Justice Oliver Wendell Holmes Jr. on the U.S. Supreme Court in the early 1930s: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”

Fifty years earlier, in a first-year law class at Vanderbilt with 127 men and three women, Martha “Cissy” Daughtrey had discovered firsthand how slowly equality came to the weak and disenfranchised.

She had grown up in the 1950s amid the steel mills of Middletown, Ohio, and was schooled on a high school scholarship at the National Cathedral School in Washington, D.C. In 1961, she married a political reporter for Nashville’s morning newspaper. When she showed up at law school in a green corduroy jumper, the only maternity outfit she could afford on an eighty-five-dollar-a-week journalist’s salary, her faculty adviser never spoke to her again. A constitutional law professor asked her to stand up in class and recite a 1961 Supreme Court case, Poe v. Ullman, which had kept intact a Connecticut law that banned the use of contraception. It could have been a coincidence, but Daughtrey didn’t think so.

There was no money for childcare, and there were no day-care centers in Nashville anyway, so she left law school when her daughter was born. She eventually found a preschool that admitted toddlers who were potty trained and spent the summer of 1966 hovering over a toilet. “Look,” she told her daughter, “I don’t want to put any pressure on you. But if we can get this done in the next couple of months, your mama can go back to law school.”

In her third year at Vanderbilt she started hunting for a job in bustling Nashville, with its Country Music Hall of Fame and downtown auditorium that hosted the Grand Ole Opry. But there were only three practicing female lawyers in town, and though Daughtrey was in the top 5 percent of her class, no Nashville law firm would hire her. She applied to a local bank, thinking that trust work would be considered an appropriate job for a woman, but the vice president said the bank hired men only. She promptly withdrew the seventy-five dollars in her savings account and stomped out.

She got a job in the U.S. Attorney’s Office, prosecuting criminals before all-male juries, and later returned to Vanderbilt to become the university’s first female law professor. As the only woman in the faculty lounge, she often found herself debating male professors about the burgeoning women’s movement. She was nominated to the Tennessee Court of Criminal Appeals, the first woman to serve on any court of record in the state. Once, a male lawyer in the throes of an oral argument had looked up at her on the bench and said, “Honey, I’m so glad you asked me that question.”

“I’m not offended,” she told him later, “but I just wanted to point out what you had done because if you ever call Judge Joe Duncan over here ‘honey,’ I think he might be offended.”

In 1993, as her daughter prepared to graduate from Vanderbilt Law School, Martha “Cissy” Daughtrey was nominated by President Bill Clinton to a seat on one of the most powerful courts in the country, the U.S. Court of Appeals for the Sixth Circuit. The same-sex marriage cases coming out of Ohio, Michigan, Kentucky, and Tennessee felt to the judge like being there all over again, in a place and time when it was acceptable to marginalize an underclass because that was the way it had always been: us and them.

In her office after the vote in the robing room, she glanced at her books on the suffrage movement. In that low moment alone, knowing that the move toward marriage equality had just suffered a significant setback, she thought about the bumpy, long road to women’s rights. She felt certain of the similarities. Seventy-eight years spent waiting on the democratic process to work, Judge Daughtrey decided, had only seemed like a long time to the women who were waiting.

From “Love Wins – The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality.”

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