Then Comes Marriage (7 page)

We flew to Toronto on Friday, September 9, 2005, and in the presence of Rachel's family and two close friends, we took our vows in the modest wood-paneled office of the city clerk. Following Lavine family tradition, we went out afterward for a wedding feast at a Chinese restaurant, just as Rachel's parents had done after their wedding, but that was the extent of the celebration; within twenty-four hours, we were back in New York. My parents did not make the trip, but I was not surprised or upset by that. I knew that they were planning to come to the Rhode Island ceremony the next week—which was already one more wedding of their daughter than I had ever expected them to attend.

Not only did they attend, but they also invited several dozen of their friends and family from Cleveland. Yes, fourteen years after she'd banged her head against the wall, my mother embraced my Big Gay Wedding and happily took part in it. At our Jewish ceremony, the traditional Sheva Berakhot, or Seven Blessings, were recited, and we invited various family members and friends to read them during the ceremony. My parents read one, standing up in front of 150 guests on that beautiful fall day, to support us in our marriage.

Our dear friend Rabbi Jan Uhrbach married us, which was itself a courageous act. Because she is a Conservative rabbi, Jan was technically not supposed to be officiating at weddings for same-sex couples at that time. (The Conservative movement did not change its position until later in 2006 after a close and contentious vote.) But Jan has always pursued the path she knows to be just, regardless of official disapprobation. She fought for openly gay and lesbian students to be admitted to the Jewish Theological Seminary, where she had studied and then taught, and argued for the Conservative movement to ordain openly LGBT rabbis.

Having Jan perform our marriage ceremony was profoundly meaningful to Rachel and me, and we were deeply moved by her words. In particular, we both have remembered this important truth: Jan told us that we would learn that in any marriage, there will be wonderful parts and there will be terrible parts. She reminded us that one of the reasons we have a wedding is not only to publicly demonstrate our love for each other but to make the community integral to the promises we made that day by supporting us during the terrible times. Finally, Jan reminded us about what makes marriage different: When you marry, you have closed the door to the idea of leaving the relationship. You say to each other, I will stand with you for the rest of my life—no matter what.

After our ceremony, Rachel and I—like Thea and Edie before us—felt the inexplicable difference between being married and not married. We had no idea how powerful it would be. It was not only the power of the public recognition of our love for each other, but also the feeling of dignity that the marriage ceremony had conferred upon our relationship. When Rachel and I married, I was in the thick of the New York marriage equality case, drafting our brief and thinking about the upcoming oral argument in Albany. Standing up in front of family and friends, holding the hands of three-months'-pregnant Rachel, I understood not only intellectually but also viscerally what I was really fighting for.

But despite the feelings of dignity our marriage bestowed upon us, there was still no guarantee that the rest of the world would recognize it. We found that out the hard way, just after our son was born.

ON APRIL 5, 2006
, Rachel gave birth to our son Jacob at one of the most prestigious teaching hospitals in New York City. I was with her in the delivery room, watching as she underwent a successful cesarean section and our beautiful boy came into the world. I stood nearby while a nurse cleaned him up, counted his fingers and toes, and did the Apgar test to make sure he was healthy. The nurse then put the baby into my arms, and I carried him to Rachel so that she could see him for the first time. The whole experience was magical, and everyone in the delivery room could not have been nicer or more inclusive.

As Rachel and I held Jacob and cooed over him in her hospital room, we could not get over how beautiful he was. He had an unusual golden-peachy tone to his skin, which to our besotted eyes made him even more gorgeous. “Just look at him!” said Rachel. “He's the color of an apricot!” What we did not realize was that his warm and appealing skin tone was the result of infant jaundice, which can cause serious problems in a newborn. So, not long after his birth, Jacob was whisked to the neonatal intensive care unit (NICU) and put under bright blue-green lights for phototherapy treatment. Rachel was still bedridden, recovering from her C-section, so while Jacob was in treatment, I would go to the NICU multiple times a day to bring him to Rachel to nurse or to feed him myself with formula to help with the jaundice, wearing my hospital-coded bracelet to prove that I had the authority to do so.

Both Jacob and Rachel received excellent care, but after five days, we wanted to be out of the hospital and back home. Jacob's jaundice had finally dissipated, and while Rachel was not fully healed, we had had more than enough of hospital food, hospital beds, and stale hospital air. It was a Sunday morning, and as I went out to the car and fiddled again with the extra-padded baby seat that had taken me hours to install in my mother's old car, which we had affectionately named “Black Beauty,” I could not wait to bring Jacob home.

Rachel was resting in bed, still wearing her hospital gown because putting on clothes would irritate her sutures. I told her that I would go get Jacob from the NICU and bring him back to her room so that she could get dressed with my help and then we could all leave together. I walked down the hall to get Jacob, but when I picked him up and wrapped him in a blanket, the nurse on duty said, “Excuse me. Where do you think you're going?”

“We're checking out,” I said. “We're going home today.”

“You cannot take that baby,” she said sharply. “Only the mother can take him.”

I stared at the nurse, my face flushing with anger. For the past five days, I had been coming in and out of this very NICU to feed and care for my son. I had a hospital bracelet on my arm that had allowed me to be present from the birth onward, no matter where Jacob was. We had signed papers both with our own ob/gyn's office and the hospital giving me full authority to care for and sign paperwork for our son. All the doctors and nurses—including this one—had seen me here, hardly sleeping or eating for the past five days as I fretted over his health. And now this nurse was treating me as if I were a stranger to my own son.

“Listen,” I said. “My wife is still recovering from her C-section. She can barely walk, much less carry the baby to the car. Are you really going to make me get her out of her bed to do this?”

“Hospital policy,” she said. “Only a parent can take a child out.”

Her words felt like a slap in the face. Seething, I laid Jacob back down and stalked to Rachel's room. “Honey,” I said. “You're going to have to go get Jacob.”

“Why can't you do it?” she asked.

“Because the nurse won't let me take him,” I said. “She says only his
mother
can take him.”

Rachel pulled herself out of the bed and hobbled down the hallway in her hospital gown. My normally feisty wife was too weak and exhausted to do more than stand in the NICU, swaying back and forth as she signed the final paperwork, while the nurse gave us a fake smile. Afterward Rachel told me that she had also been too afraid to argue with the nurse. It was a Sunday morning, and if we fought with the nurse, she could retaliate by keeping our baby for another day and we would have very little recourse until Monday. It was the first time, Rachel said, that she had ever felt so vulnerable: now homophobia could hurt not just us but our defenseless child.

Rachel picked up Jacob and walked out of the nursery with him, then immediately handed him to me. (The day before, when they had brought Jacob's birth certificate to Rachel to sign, she had wanted to strike “Father” and list me in that space as co-mother. I had insisted that she leave it blank, and she did so unhappily. I was afraid that it might somehow be construed as tampering with an official document, delaying or even jeopardizing my adoption of Jacob.) The three of us staggered to the car, emotionally spent. Suddenly the world seemed a much scarier place.

Despite our legal marriage in Canada, I was not considered a “presumptive parent” because I was gay. But if I had been Rachel's husband, that nurse would have let me take Jacob home, no questions asked—especially after five days of caring for him in the NICU. I was fuming, but the experience at least offered me some clarity: we would never have true equality until we could legally marry in our home state and be treated like all other spouses and parents.

Incredibly enough, just six weeks later, I would have the opportunity to try to make that happen. I was scheduled to stand in front of New York's highest court on May 31, 2006, to present my argument for marriage equality. I always want to win every case, but especially after our debilitating experience at the hospital, I knew that I had to win this one.

4

BE BRAVE—DO
THE RIGHT THING

F
rom the moment Matt Coles called me, I was obsessed with figuring out how to win the case for marriage equality in New York. At that point, the only state that had legalized marriage between lesbian and gay couples was Massachusetts, and the idea that other states might follow caused many Americans to break out in hives. As a result, our message to the judges would need to be:
Be brave. Do the right thing, even if it's hard
.

In other words, what we had to do was convince the judges that New York was different—that it should be a trailblazer among the fifty states, a leader of other states rather than a follower. This wasn't a crazy idea. New York, after all, has one of the largest populations of openly LGBT residents, behind only California and Texas. It also has a history of acting boldly in gay civil rights. In 1980, more than twenty years before the Supreme Court's
Lawrence
decision removed the criminal sanction from gay sexual relationships, the New York Court of Appeals, New York's highest court, had struck down its own antisodomy statute in a case called
People v.
Onofre
. And New York was also ahead of the curve with respect to second-parent adoption by gay parents as well, thanks to the
Jacob
and
Dana
decision back in 1995.

So why shouldn't New York continue to lead the way in gay civil rights? Sure, six out of ten Americans still believed gay marriage should be illegal, but New York was better than that. This was the argument that I believed would give us our best chance in the New York Court of Appeals, which ultimately would decide the issue.

In the beginning, however, it was not clear that our case would make it that far. As soon as New York shut down the New Paltz marriage experiment, attorneys from all over the state rushed to file lawsuits. At least five suits began making their way through the court system, and as is typical in a big civil rights case, there was fierce jockeying for position. Everyone wanted to be the lawyer who brought marriage equality to New York State. The ACLU and Lambda Legal, both of whom had been working on the issue for years, each wanted their case to be the one chosen by the Court of Appeals to decide the issue.

We filed our case,
Sylvia Samuels et al. v. New York State Department of Health
, on behalf of thirteen plaintiff couples. It was a common practice in those days to have a “rainbow coalition” of plaintiffs in gay rights cases. The theory was that by having many different kinds of couples (gay men, lesbians, older people, parents, couples of different races) as plaintiffs, the judges would be able to see the breadth of the affected population.

But as I soon found out, there is at least one significant problem with this strategy. In a case with so many couples, inevitably some of them break up. A few of our plaintiff couples separated over the next two years, which did not help. We needed to bring in some new plaintiffs who we knew that we could count on not to separate while the case was pending, so I decided to add New York State Assemblyman Daniel O'Donnell—the brother of comedian and talk show host Rosie O'Donnell—and his then boyfriend (now husband) John Banta. The ACLU was worried that Danny would receive the lion's share of the press attention, but I insisted. As a private firm lawyer, I have more freedom; I don't have a constituency I have to please, and I do not have to raise money. I focused on what I thought would best help to win the case.

Bringing in Danny O'Donnell was not the only time the ACLU and I clashed over strategy. While ACLU attorney James Esseks and I were mostly on the same page, Matt Coles and I had our differences.

From the start, we disagreed about how best to argue the case. Matt insisted that we open our brief with what is known as the substantive due process argument, based on the decision of the Supreme Court in the 1967 case
Loving
v
.
Virginia
, a case defended by an interracial couple whose marriage was not recognized in their home state. For this argument to succeed, however, the court would have to conclude that the fundamental right to marry necessarily includes marriages between gay couples. I did not think we would succeed in convincing the court of this argument back then, since historically no one ever thought of marriage as an institution involving gay people. Instead, I believed the far better strategy would be to emphasize the equal protection argument, which posits that the Constitution does not allow the government to treat gay people any differently than straight people with respect to marriage. In my mind then and continuing today, this equal protection argument is, at its core, what LGBT rights cases are really all about—the simple proposition that gay Americans, like all Americans, have the constitutional right to equal protection under the law.