Bill Harbison and Abby Rubenfeld
On the morning of June 26, 2015, Abby Rubenfeld ducked into a jury chamber at the back of a Fourth Circuit courtroom to watch SCOTUSblog, a site that tracks Supreme Court cases and live blogs when the Court announces decisions. Her youngest daughter, a student at MTSU, had come to court to await the ruling with her.
"I was shaking," the Nashville attorney recalls.
After refreshing again and again, the blog's light-blue banner plinked on with a post. A decision had come down in the matter of Obergefell v. Hodges, the landmark case that would determine whether it was constitutional for states to ban same-sex marriages. The vote was 5-4. Rubenfeld anxiously looked to see who had written the opinion. There it was, on the screen: Justice Anthony Kennedy.
"I knew we had won," Rubenfeld remembers. "I jumped up, hugged my daughter and ran in the courtroom ... and yelled, 'We won! We won marriage equality!' Everybody in the courtroom cheered, in Nashville, Tenn.! It was so awesome.
"Of course, they were divorce lawyers," she quips. " 'You're welcome.' "
Across James Robertson, in Davidson County Chancery Court, someone tapped attorney Bill Harbison on the shoulder to let him know the Obergefell decision was in. He smiled to himself and headed back to his law office at Sherrard & Roe. The normal-day buzz of downtown Nashville receded as he looked out over the city from the Pinnacle Building. Harbison's calm veneer belied his excitement. He tried to answer the flood of congratulations, but there were too many to field.
Within a few hours, then mayoral candidate Megan Barry was performing the first legal same-sex weddings in Nashville history.
"It was so wonderful to be able to share in the joy of this day, with these couples who had waited a long time to get married," Mayor Barry tells the Scene. "The fact that I got to share, in a small way, that historic moment — I think I'll remember that for the rest of my life."
That afternoon, Harbison joined Rubenfeld and a few colleagues to celebrate the culmination of their incredible two-year legal odyssey. The journey began with a 2013 lawsuit, Tanco. v. Haslam, asking Tennessee to recognize the marriages of three same-sex couples who had legally wed in other states and then moved here. They carried their petition from a U.S. District Court in Nashville, through a federal appellate court, to the highest court in the land. Along the way, they endured losses, setbacks and countless late nights of unpaid, unglamorous toil. And that morning in June, the gavel fell, settling the question of whether the U.S. Constitution guarantees same-sex couples the fundamental right to marry.
For Rubenfeld, Harbison and the many first-class litigators, civil rights strategists and polished plaintiffs involved in Tanco v. Haslam, victory and vindication were sweet. One day, someone may well affix a commemorative plaque to the booth at J. Alexander's where the afternoon toasts escalated.
"I called [it] the 'marriage equality booth,' " Rubenfeld recalls. "We got pretty smashed that day."
Rubenfeld and Harbison were just two of many players in one of the biggest civil rights cases of our time. They spearheaded the Tennessee suit and then joined forces with other teams from other states in the higher courts — quickened by a gathering wind of public opinion and court rulings nationwide that surged at their backs and filled their sails.
For that reason, the Scene names Abby Rubenfeld and Bill Harbison as our 2015 Nashvillians of the Year. This is the story of that historic case.
In the Tanco saga, fortune did seem to favor the prepared. Abby Rubenfeld had been readying herself for most of her life.
In college, Rubenfeld didn't want to be gay. She'd been elected the first-ever female class president at Princeton and had set forth a detailed plan to be elected to Congress, the Senate and the U.S. presidency as soon as practicable.
"It was the early '70s," she says. "You couldn't be gay and be in politics ... but then, I was so miserable, I had to come out."
Rubenfeld exchanged her political ambitions for a less conventional life, but one that felt more true. But in her way, she did go into politics. As a young lawyer, she worked for the national LGBT advocacy organization, Lambda Legal, for five years — just as the world was learning about a disease called AIDS. She'd grown up in Sarasota, and after the Lambda years, she wanted to come back south, where she felt her generation's toughest civil rights battles would be waged.
"This is where work needed to be done," she explains.
After moving to Nashville and opening a small law firm, she soon gained a reputation as an outspoken LGBT advocate willing to take even seemingly hopeless gay-rights cases, even when clients couldn't pay.
No case was too small. By the mid-'90s, recalls Tonya Goldsberry-Rogers, "Ms. Rubenfeld was already a rock star in the community." In 1994, Goldsberry-Rogers (then just Goldsberry) was a senior at Smyrna High School and wanted to take her college-age girlfriend to prom. School administrators told her they'd sooner cancel the event. She called Rubenfeld, who promised to help, pro bono.
"It felt like calling in the big guns," Goldsberry-Rogers says. Rubenfeld wrote a letter to school administrators, and they backed down.
On prom night, Goldsberry-Rogers was "super-nervous" when her turn came to cross the stage with her female date. She wasn't sure how her classmates would respond.
"When they announced us, the entire room went berserk, just crazy with applause and cheers," she says. "I'll never forget it." That ovation gave her the first glimpse of a life she hadn't imagined possible.
"Thinking, 'I may be able to have all of the things that ... I thought I might not ever have,' " she recalls. "A spouse, children, a life where I can live openly and not have to hide. It was really an amazing moment."
A good portion of Rubenfeld's early work was in the trenches of family law, at a time when gay Southerners who did come out often came to regret it. She represented lots of lesbian moms and gay dads who'd tried heterosexual marriage, hoping to suppress, cover or simply ignore their sexuality. In the subsequent divorces, they would often lose custody of their children.
"The other lawyer would stand up and say, 'Your honor, she's a homosexual. She's a felon. She shouldn't have custody,' " recalls Rubenfeld. "And it'd be like, they win." She fought to overturn the antiquated sodomy laws that criminalized her clients. Along the way, she endured shattering setbacks.
One particularly disastrous loss was Bowers v. Hardwick. In 1982, a 29-year old bartender in Georgia was arrested for having oral sex with a man in the privacy of his own bedroom. Gay rights advocates saw this as an ideal test case for challenging state sodomy laws, so Hardwick sued the state of Georgia.
The case landed before "the Supremes" in 1986, but the decision was a shocker for the LGBT community. The Court ruled 5-4 that the Constitution did not protect the right of gay adults to engage in consensual sodomy.
The ruling was widely criticized within the legal community. "A decision that was premature in 1986 swiftly became an embarrassment," wrote Yale law professor William N. Eskridge in an amicus brief. But the Supreme Court doesn't reverse decisions lightly. Americans had to live with that "embarrassment" of a ruling for 17 years, until Lawrence v. Texas overruled it in 2003, declaring anti-sodomy laws unconstitutional.
Rubenfeld took the Hardwick loss hard. She'd coordinated amicus briefs for that case while at Lambda Legal, and attorneys and activists were confident they would win.
"It was like a bell jar coming down over me," she says. "The opinion had such hateful, awful language in it, just so dismissive of us as people."
That case was also a painful object lesson in the perils of bringing a groundbreaking civil rights case "too early," before the battle to win hearts and minds was far enough along.
"There is nowhere to go after the Supreme Court," explains Shannon Minter, legal director of the National Center for Lesbian Rights (NCLR), a prominent advocacy group. "Losing in the Supreme Court is devastating. It has a very big effect on public opinion, and the court does not change its mind quickly."
Many LGBT-rights pioneers of Rubenfeld's era, whom she sometimes calls "the Hardwick generation," took that lesson to heart. They wanted to win the big test cases, and some felt they'd have to wait until the time was right. They had begun their legal careers as outlaws. Felons. And in the legal community, some were still outcasts, afraid of what would happen if they came out to their colleagues or their bosses.
Rubenfeld had been openly gay since law school, repercussions be damned. If a big firm wouldn't hire her, by God, she'd practice law on her own. And she had little patience with being asked to wait. Her clients were losing custody of their children, in part, because of Hardwick. So she kept fighting and losing ... and occasionally, winning. In the mid-1990s, she challenged Tennessee's sodomy law — with no big organization backing her — and saw it overturned on appeal in 1996. Finally, a win.
And then, in other quarters, a few more wins. Massachusetts legalized same-sex marriage in 2004, and a few other states passed domestic partnership laws. Meanwhile, a lot more states passed same-sex marriage bans. The battle had begun in earnest, and it seemed to be headed for a stalemate.
"We were winning in a lot of states," Rubenfeld says. "But other than Iowa, they were all the obvious, really progressive states, and it sure didn't seem like something was going to happen here." Some strategists were loath to launch a marriage equality test case from states like Tennessee, where public opinion was still very much against same-sex marriage.
And then came United States v. Windsor, the watershed 2013 case that made marriage-equality advocates start to believe in the impossible.
Windsor changed my life," Knoxville attorney Regina Lambert told lawyers and students at a Belmont law school seminar last Friday. In United States v. Windsor, the Supreme Court overturned the Defense of Marriage Act (DOMA), which meant the federal government could no longer restrict the definition of marriage to heterosexual unions.
In the opinion, Justice Kennedy declared DOMA invalid on the grounds that the law's principal purpose was "to impose inequality." The government, he wrote, had no legitimate reason "to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."
For Lambert, this language was a revelation. She had kept her sexuality very private, fearing repercussions. And now, here was a Supreme Court decision invoking the dignity and personhood of LBGT people. More importantly, she knew instantly that the ruling had opened the door to challenging state same-sex marriage bans.
"The reasoning Justice Kennedy used was that DOMA treated same-sex couples and their children unequally," explains Shannon Minter of NCLR. "It stigmatized them and caused enormous harm to those families, not only by denying federal legal protections that go with marriage, but by sending a message that those families were inferior.
"That reasoning applies ... even more strongly to state marriage bans."
Lambert considered how to build a case. Meanwhile, Rubenfeld had the exact same thought. She called Minter and told him, "We have to file a suit in Tennessee. We can't leave the South out." Some of the national LGBT-rights groups, Rubenfeld says, quietly asked attorneys not to file suits in "difficult" — i.e., more conservative — states.
"To me, that wasn't good reasoning," she says. "People in Tennessee want marriage just as much. The law's the law, and it applies to all of us." Minter agreed.
"When do we start?" he asked. NCLR was on board.
Around that time, a newspaper reporter called Rubenfeld to ask her if there would be a test case to challenge Tennessee's ban in the wake of Windsor. "So I said, 'Hell yes! There's going to be a case here,' " she recalls, laughing. "And then that became a headline: 'Rubenfeld to Sue State.' "
Lambert saw the headline and wrote to Rubenfeld, asking if they might join forces. "I was like, 'Cool! Now it's me and you,' " says Rubenfeld. The two started interviewing possible plaintiffs and plotting their strategy. Similar suits were popping up all over the country in the wake of Windsor, and they wanted Tennessee to be on the front lines.
In Valeria Tanco and Sophy Jesty, they found their dream plaintiffs. The two had met as veterinary postgrads at Cornell and married in New York in 2011. They then moved to Knoxville to join the UT College of Veterinary Medicine faculty.
According to Tennessee law, however, their marriage was invalid. And what almost no one except the couple knew was that Tanco was pregnant — she had conceived a day or two after the Windsor decision.
That significantly raised the stakes. If their marriage weren't recognized, Jesty would be a "legal stranger" to their child, which meant that Jesty would have no legal parental rights if anything happened to Tanco.
"The people who are the most vulnerable in that are the children," Jesty says. "They are stripping a child of one of their parents."
Lambert discussed the pros of being named plaintiffs but focused more on cons. There would be lots of media attention, and much of it might be negative. "[We] didn't take much time to decide," Tanco says. "We felt we had to do it."
The puzzle pieces were coming together. Plaintiffs were signing on. Minter had promised the support of NCLR. But the team still needed the resources of a big law firm behind them. Having a prestigious firm involved could also send a powerful message: This is not a fringe issue. Marriage equality matters to everyone.
The first firm they called initially agreed, then backed out; a partner was reluctant to associate the firm with such a controversial issue. Lambert recalls a conference call with several attorneys, tossing around ideas for another law firm they might ask. A second-year law student piped up, "My dad'll do it."
The student was Jay Harbison (now an attorney at Neal & Harwell). Rubenfeld knew his father, Bill Harbison, by reputation. A third-generation lawyer and president-elect of the Tennessee Bar, he was revered in the Nashville legal community. Rubenfeld was surprised — and initially a tiny bit skeptical. To her, Harbison seemed straitlaced, not necessarily the type to risk his reputation on a hot-button issue.
"I get it," Jay Harbison says, laughing. "Abby maybe thought Dad was a stodgy old white guy. She wasn't so sure about Bill Harbison. It's a fair assumption, you know: 'He thinks X way.' "
But Jay Harbison knew how his father thought. The two had had discussions about marriage equality and other civil rights causes. And Bill Harbison and his firm, Sherrard & Roe, had recently tried another high-profile civil rights case, successfully representing undocumented Mexican immigrant Juana Villegas in her suit against the city of Nashville.
"It gave us a sense of how gratifying it is to work on something like that and actually change something," the elder Harbison says. "I enjoy seeing how the law can be an agent for change."
Jay Harbison slipped out to Lambert's patio and called his father. Bill Harbison told his son he'd love to take the case.
If anyone at Sherrard & Roe was concerned about taking on the controversial cause, no one said so. "It was an immediate, 'We'll do it,' " recalls Phil Cramer, one of several attorneys from the firm who put in long hours on the case. "We're not a homogeneous group. We have different political views. But not a single person ever said, 'No, we shouldn't take this case.' "
At first glance, Rubenfeld and Harbison might seem like odd allies. Harbison exudes stillness. He speaks quietly and deliberately, with a studied diplomacy — he's quick to agree, or at least to see your point. Unruffled, dignified and warmly polite, he behaves as if he has time for you, even if he doesn't. And everyone who spoke to the Scene for this story said the man seems to have no enemies.
Rubenfeld is built of raw energy, and she moves like an athlete. (She played basketball and rugby and rowed crew in college.) Her words spill out in an unedited storm of stories and quips, tangents and addendums, as if she's considering all the possibilities aloud in real time. If she disagrees, which she frequently does, she will say so — without necessarily softening the blow.
"I ruffle feathers a lot," she admits.
What the two share is a belief that the law should be a tool to balance the scales. Harbison's outrage may be quieter, but it's no less searing. When asked why he joined the Tanco v. Haslam legal team, he tells the Scene, "It was an unjust thing that needed to change. And it wasn't going to change through a political vote."
Valeria Tanco and Sophy Jesty describe Harbison and Rubenfeld as a complementary but very different pair — one a "gentle giant," the other a relentless fighter.
"Have you ever seen those giant teddy bears they sell at Costco, like three or four times the height of a normal adult?" Tanco says, laughing. "Every time I hug Bill, that is how I feel. He's strong, tall and ... has the softness of this humongous heart."
"Abby is the complete opposite," Jesty adds. "She will say what she thinks. She's irreverent and outspoken. She's got a thick skin. She's a little bit harder on the outside than Bill is. ... She's a warrior."
With The Warrior and The Diplomat in their corner, Tanco and Jesty say, they felt secure becoming the public face of one of the most divisive issues in American life today. The attorneys devised a savvy legal strategy: Instead of tackling same-sex marriage bans head-on, they would limit their challenge to a single issue: recognition of same-sex marriages between states.
"The Supreme Court usually likes to take baby steps on issues," Rubenfeld explains, "so we tried to present them a narrow, small leap forward from Windsor."
For Tanco v. Haslam, the legal team represented six plaintiffs — three same-sex couples who had lived in other states and married legally there, then moved to Tennessee. The suit sought to demonstrate harm done to these couples because the state would not recognize their marriages.
Plaintiffs Thom Kostura and Ijpe DeKoe married in New York in 2011, right before DeKoe was deployed to Afghanistan. In 2012, DeKoe was transferred near Memphis. In a strange, post-Windsor legal twist, the military recognized their marriage, but Tennessee did not.
"On base, we were married," DeKoe explains. "And if we stepped off federal property, we were legal strangers to one another.
What if something happens to Ijpe? Kostura worried. His husband had a 20-mile daily commute to work. On a motorcycle. And in Tennessee, where they weren't considered legal spouses, Kostura might not be able to visit him in an ICU or make life-or-death decisions about his care.
"That basic responsibility for somebody else — to take care of someone," DeKoe says, "that's the dignity we look for."
That's just one example of the kind of tangible harm the suit aimed to prove — real-world problems within families, caused by the state's failure to recognize marriages. Another was the issue of co-parenthood for same-sex couples. That issue, for Jesty and Tanco, would soon cease to be abstract.
By October 2013, when the attorneys filed Tanco v. Haslam with a U.S. District Court in Nashville, Tanco's belly was noticeably rounded. And in March 2014, a week before the due date, a judge finally handed down a preliminary injunction requiring Tennessee to recognize the six plaintiffs' marriages.
The injunction came just in time. When Tanco and Jesty's daughter Emilia was born 13 days later, her moms were considered legally married in Tennessee. Both of their names were on the original birth certificate — a first for Tennessee, Rubenfeld believes.
The state appealed the ruling, just as similar suits were working their way through the appellate system in the other three Sixth Circuit states: Ohio, Kentucky and Michigan. The Sixth Circuit heard oral arguments from all four states' cases on Aug. 6, 2014. Meanwhile, circuit courts all over the country were hearing marriage-equality cases, all spurred by the invitation that the Windsor ruling seemed to offer.
"Virtually every decision that came down was like our district court decision, finding that marriage equality was correct, that anti-recognition laws were not enforceable," Harbison recalls. "That's how the dominoes were falling in all the courts."
The day of oral arguments at the Sixth was the first time Kostura and DeKoe met the entire legal team. Walking past a gauntlet of street preachers and protesters, DeKoe recalls, "We were immediately enveloped by suits. I realized that we were wearing a suit of armor of lawyers ... this entire network of people supporting us."
Harbison argued the case on behalf of the Tennessee plaintiffs. "I never once asked to argue it," says Rubenfeld — even though she would have loved the chance. "Part of doing test cases is politics and strategies and the appearances of it. It made sense to have Bill Harbison, who is president of [the Tennessee Bar Association], a very well-known, straight guy .... And he did a great job." She shrugs. "I can put my ego aside to make the case work better."
In November, the Sixth Circuit ruled 2-1 against the plaintiffs, upholding bans on same-sex marriage — and recognition of such marriages — in all four states. It was a crushing blow, but one with a silver lining: Losing in the Sixth might pave their way to the Supreme Court.
Justice Ruth Bader Ginsburg had said publicly that the "Supremes" would not hear a marriage-equality case unless there was a split among the courts of appeals. In the months before the Sixth Circuit ruled, other federal courts had overturned bans in more than a dozen states. The Sixth Circuit ruling created the split everyone had been waiting for.
"Our timing was just right," Harbison says. "And we happened to be in the circuit that went the other way."
Legal teams from all four Sixth Circuit states had a week to file their cert petitions — requests to the Supreme Court to hear an appeal — for the current term. The Supreme Court agreed to hear all four cases that spring, consolidated under the name of the Ohio case: Obergefell v. Hodges.
"We were going to the Supreme Court to win marriage equality," Rubenfeld says. "It was pretty overwhelming."
Sitting at counsel table in the Supreme Court was the "thrill of a lifetime" for Abby Rubenfeld. But she did not sit there alone. In her heart, the Hardwick generation was there with her.
"I was just channeling all the old-time attorneys that have done gay rights work since the '70s and '80s," she says, "because I was the only one of them that got to participate in this case, just by luck."
There's a photo of DeKoe and Kostura from that morning, looking handsome and fit in dark suits and striped gray ties, striding through the crowd toward the Supreme Court. Under a brilliant blue April sky, a protester holds a sign reading, "HOMO SEX IS SIN," with the word "sin" in red. DeKoe and Kostura's faces are impassive. DeKoe laughs.
"We call it our 'Don't give an F' look," he says.
Several hours later, when arguments were finished, the D.C. police ushered them through a chaotic gallery toward the exit. Amid the confusion, DeKoe kept hearing a constant, rhythmic roar. As they exited the doors, he realized the roar was people.
"The crowd had grown from hundreds to a sea of thousands," Kostura adds, "and they were chanting, 'Love must win.' " That wall of noise drowned out the protesters they'd heard so clearly that morning.
"You could see their mouths moving, but you couldn't hear them," DeKoe says. "It was very powerful."
Jesty and Tanco wept as the team descended the marble steps together. Recalling that moment later, in a sleek Sherrard & Roe conference room, Harbison too is moved to tears.
"Their stories had been told," he explains. "Very emotional."
For Rubenfeld, the tears came after it was all over, when she actually read Justice Kennedy's opinion. One passage that particularly resonated with Harbison was this: "The nature of injustice is that we may not always see it in our own times."
But Rubenfeld had always seen this particular injustice. She had felt it for most of her life. Pretty much everyone she knew from the Hardwick generation told her they cried too when they read Kennedy's opinion.
"I never thought we would have marriage equality in my lifetime," she says. "It was the fastest evolution of a civil rights issue, I think, ever ... It was like time lapse — you know, fast-forward photography, where you can see, like, a plant grow."
Harbison and Rubenfeld's favorite passage from the Kennedy decision is the same one — the final paragraph:
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. ... They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
Rubenfeld, who is married with two daughters, still has a hard time remembering to say "spouse" instead of "partner." Sitting on a fur-matted couch in her small law office, patting a snoozing chocolate lab named Buddy, Rubenfeld the Warrior reflects on why she chose the law as her weapon.
"I love our country, and I love our constitutional system. Our constitution is a really beautiful and well-constructed document," she says. "But there's so much work to do to enforce it, and to make sure that it's applied equally to everyone."
She has no plans to stop working to enforce it anytime soon. For her, there are plenty of civil rights battles on the horizon — transgender rights, income inequality, racism, workplace discrimination. "We're allowed to be happy and celebrate our victory for a little while," she says. "And then we have to get back to work."
"We had fun working on it," Bill Harbison says, reflecting on the improbable confluence of timing, human effort and dumb luck that took Tanco v. Haslam all the way. "This is for sure something to remember."
His 11th-floor conference room glows with brilliant afternoon light. He too hopes to take on more pro bono civil rights cases like Tanco and Villegas.
"It is really energizing to work on something that is larger than money," he says. "This is what we went to law school for."
