Editor’s Note: In a 5-4 ruling on June 26, 2015, the U.S. Supreme Court declared that the Constitution guarantees the right for same-sex couples to marry across the country. Here is the story of two women who fought for that historic decision in Texas—and helped to make it a reality.
The epicenter of the culture wars in Texas at this particular moment is an otherwise unremarkable two-story tan-brick house with a tidy yard in the farthest reaches of the South Austin suburbs. It is home to Cleopatra De Leon and Nicole Dimetman, two women engaged in a historic fight over warring notions of love, marriage, and what it means to be a family—though they are hardly the wild-eyed radicals their opponents imagine them to be. When I visited one evening last fall, both greeted me at the door in a soundless pantomime of welcome. They had warned me beforehand that I would be arriving right around their son’s bedtime, and now each woman pressed a finger to her mouth, signaling me to be quiet as I stepped inside. Both dark-haired and pretty, they wore jeans, slouchy sweaters, and the content but weary expressions of working mothers at the end of a long day.
I followed them as they tiptoed across the foyer and past the kitchen, where the refrigerator was bedecked with rainbow-hued finger paintings and snapshots of a two-year-old boy with a crinkly-eyed smile. A grainy printout from a recent sonogram showed the tiny silhouette of the baby girl whom Nicole, then four months pregnant, was carrying. Only when we reached the living room, where toys lay scattered across the glass coffee table, spilling onto the beige wall-to-wall carpet below, did Cleo and Nicole break the silence. In stage whispers, they alternately spoke over each other and completed each other’s sentences, the way old couples often do:
“We just put our son down, and his bedroom is right above the front door, so—”
“—we have to be quiet—”
“—because he had a tough day and—”
“—he was fussy at dinner—”
“—and he kept wanting us to read him stories before bed, and—”
“—he wouldn’t settle down—”
Suddenly, the baby monitor crackled with the boy’s cries. Both women froze in mid-sentence, listening with the fierce concentration of parents assessing whether the rest of their evening will be spent in the company of adults or with an inconsolable toddler. As we stood waiting, Nicole ran her hand across her belly; she was just beginning to show.
We heard the boy whimper, his displeasure amplified by the monitor, then fall silent. Two cats studied us from the couch as we listened to see if he would go back to sleep; the only sound came from the rescue mutt, whose collar jangled as he sniffed my boots. After another minute passed with no further cries, the mood brightened. Cleo turned to me and, in a hushed voice, asked, “Would you like some hot cocoa?”
The domesticity of the moment was an almost comical backdrop for two women who have been accused of trying to undermine the sanctity of the Texas family. Along with Victor Holmes and Mark Phariss, two Plano men who have been in a committed relationship for eighteen years, Cleo and Nicole filed suit against the State of Texas in the fall of 2013, charging that its same-sex marriage ban is unconstitutional. Their lawsuit, De Leon v. Perry, advanced all the way to the U.S. Court of Appeals for the Fifth Circuit—the last stop before the Supreme Court—where oral arguments were heard this January. One week later, the Supreme Court raised the stakes when it announced that it would hear same-sex marriage cases from four other states in the spring. The Supreme Court will likely rule in June whether gays and lesbians across the nation have the constitutional right to marry, but the Fifth Circuit could hand down a decision sooner. Depending on what these courts decide, Texas may be forced—over the objections of the governor, the attorney general, and much of the Legislature—to join the 37 states in which same-sex marriage is now legal. If that happens, Texas will undergo the single most transformative cultural shift in recent memory.
Opponents of De Leon v. Perry have suggested that the lawsuit, if successful, will not only degrade the institution of marriage but bring about the destruction of Texas families. Last August, 11 state senators and 52 state representatives—roughly one third of the Legislature—signed an amicus brief backing the state’s position in the case, arguing that overturning Texas’s same-sex marriage ban could open the door to the legalization of bigamy, pedophilia, and incest. (Among the legislators endorsing the brief were Dan Patrick, now lieutenant governor, and Ken Paxton, now attorney general.) The Liberty Counsel, a Christian legal aid group, made a similarly dire forecast in a separate amicus brief it filed in solidarity with the attorney general’s office. “The future of civilized society depends on protecting permanence and exclusivity in family structure,” it stated, asserting that promiscuity is endemic to gay unions. “There can be no question that memorialization of marriage as the union of one man and one woman fortifies the foundation of Texas law and the health, safety, and well-being of its citizens.”
Yet the lawsuit coincides with a fundamental change taking place in the country at large. Less than two years after the Supreme Court’s landmark decision in United States v. Windsor—which gutted the Defense of Marriage Act, the 1996 law that defined marriage as the union between one man and one woman—11 states have legalized same-sex marriage either by voter referendum or legislative action, and judicial rulings have brought it to 26 more states. Texas, which passed a constitutional ban a decade ago with 76 percent of the vote, is one of the last, stubborn holdouts, though recent polls suggest that opposition around the state is also declining. Last fall, a University of Texas/Texas Tribune poll of registered voters found that 47 percent of respondents said they did not believe gays and lesbians should be allowed to marry, 42 percent supported same-sex marriage, and 11 percent were undecided. (A Texas Tech poll using a smaller sample found the same percentage opposing it but support among 48 percent.) “At the same time that people across the country have been on a journey with regard to their perceptions of gays and lesbians and their feelings about gays and lesbians getting married, millions of Texans have been on that very same journey,” Chuck Smith, the executive director of the LGBT-rights group Equality Texas, told me.
State lawmakers, meanwhile, have been slower to come around. First under Greg Abbott and now under Paxton, the attorney general’s office has vigorously defended the state’s ban, arguing that marriage between a man and a woman must be preserved because it is a long-standing tradition that forms the cornerstone of society as we know it; furthermore, marriage is an institution for the states, not the federal courts, to define. Most recently, the attorney general’s office has also advocated a third, more provocative, argument: that banning same-sex marriage benefits the public good by helping to promote “responsible procreation.” According to this line of reasoning, Texas has a vested interest in encouraging its heterosexual citizens to marry so they will raise their children in a stable environment, rather than out of wedlock. Consequently, the state has argued, there is no incentive in allowing homosexuals to wed, because their sexual activity cannot produce children. Barring them from marrying, the attorney general’s office has insisted, is in the best interest of Texas children.
But it is children—their children—that prompted Cleo and Nicole to file a lawsuit in the first place. Their suit argues that “responsible procreation” ignores the fact that gays and lesbians have children too, through adoption or because one partner is a biological parent. (Though legislators have tried repeatedly to bar gays and lesbians from adopting, nearly 19,000 children in Texas are being raised by same-sex couples, with San Antonio boasting the highest percentage of such families in the nation.) Because of the state’s ban, Cleo and Nicole lack many basic rights as parents. In most parts of Texas, an individual can be fired for being gay, which puts same-sex couples’ ability to provide for their children at risk; should one partner die, the other would be left to raise their children without the help of Social Security benefits. When Nicole gives birth to their daughter in March, only she—not Cleo—will be listed on the girl’s birth certificate. (Heterosexual married couples who use an anonymous sperm donor, as Cleo and Nicole did, face no such penalty.) This means that should the worst happen—should Nicole have serious complications during labor that leave her incapacitated, or should she die during childbirth—Cleo has no legal right to their child.
For these reasons, Cleo and Nicole told me when we settled in to talk, steaming mugs of cocoa in hand, they felt they had no choice but to sue the state. “People on the other side of this debate say we should slow down and leave this up to the Legislature, and we should try to change hearts and minds in the meantime, however long that takes,” Nicole told me. “What they don’t understand is the urgency we feel. This isn’t an abstract argument; these are real issues affecting real people, right now. All we really want is to live the very best lives we can.”
Nicole grew up in San Antonio, where she tried to mold herself into the kind of daughter her parents wanted her to be. Her physician father and psychologist mother played only classical music and National Public Radio at home, putting a premium on academic achievement, and Nicole, in turn, immersed herself in her studies, earning near-perfect grades at the private school she attended. Despite the praise this earned her, Nicole fell into a depression in her early teens—one fueled by a profound, sometimes debilitating sense of isolation that she did not fully understand. During heart-to-hearts with her mother, with whom she was close, Nicole confided that she felt indescribably different. It wasn’t until she was sixteen that she found some comfort, when she picked up a copy of Fannie Flagg’s Fried Green Tomatoes at the Whistle Stop Café, which tells the story of two women in small-town Alabama who move in together and raise a child. (The Hollywood film it inspired glossed over the book’s implicit theme of romantic love.) “I read it cover to cover and thought, ‘That’s me,’ ” Nicole said. “I was so happy, because I had figured out something that had been haunting me for years. I felt such a sense of relief.”
When Nicole told her mother that she thought she might be gay, her mother’s disapproval was crushing. “She’d envisioned a different life for me,” Nicole said. “In her mind, everyone hated gay people, so I needed to figure out how to be somebody else.” At her mother’s urging, she began going to weekly talk therapy sessions, but her feelings, and her nascent interest in a girl in her class, did not fade. She dreaded her mother’s lectures on the subject, which took on new insistence when Nicole and her classmate began dating her senior year. “I made sure to be home as little as possible because it had become intolerable,” said Nicole, who eventually moved in with her girlfriend’s family. After the relationship ended and she left to attend the University of California–Los Angeles, in 1994, she and her mother spoke by phone several times a week. “My mother was very supportive and loving in all other ways, aside from this one stumbling block,” Nicole said. “She’d say, ‘It won’t be easy for you to find someone to love who is a stable, normal, healthy person. You may never find anyone to love. You won’t have the life that you and I and everyone who knows you have dreamed of for you.’ That was very painful to hear.”
Four years later, her mother died suddenly of a heart attack. Nicole was unable to shake the memory of their last phone conversation, in which her mother had once again expressed disappointment, saying that Nicole had not given men enough of a chance. Guilt-ridden, Nicole wondered if maybe her mother was right. “For the next few years, I tried really hard to be straight,” she told me. She moved back to San Antonio and carried on a long-distance relationship with a boyfriend she rarely saw. She went on a string of ill-fated dates with men for whom she did her best to muster enthusiasm. The absurdity of her undertaking struck her one night when she was out with a guy she had met online. “He was super-attractive—I mean, he was movie-star handsome,” she said. “And he was educated, and he had a great job. He was really into me, and he was sweet as all get-out. By any woman’s standards, this guy was a catch! But I didn’t feel anything. And I remember thinking, ‘If this guy doesn’t make me feel anything, who will?’ ” She was preoccupied the whole evening with thoughts about her new roommate. “All I wanted,” Nicole continued, “was to go home and talk to Cleo.”
Cleo, who had just graduated from the University of Texas at San Antonio, had recently moved into the same house Nicole was renting. (Nicole’s previous roommate had left her in the lurch by breaking the lease and moving out. “I asked my friends to help me find a roommate, but I told them, ‘I don’t want to live with a guy, because I don’t need that kind of sexual tension in my life,’ ” Nicole said.) The two women hit it off, often spending evenings on the porch of their old frame house, drinking wine and talking for hours. “Within a week, we knew everything about each other,” said Cleo, who was in the midst of an on-again, off-again relationship with another woman. “Except that Nicole spent a lot of time telling me about the guys she was meeting on Match.com, and I had to listen and play along.”
Having tried to reinvent herself, Nicole could feel her resolve slipping. “I hadn’t dated women or even allowed myself to look at women in four years, but the moment Cleo and I met, there was this electricity between us,” she said. “It was like a force that was bigger than me was grabbing me by the shoulders and saying, ‘Look! Pay attention! You can have a happy life! The answer is right in front of you!’ ”
For Cleo, the path to a happy life had not always been obvious either. Growing up in South Texas, she had pored over the World Book Encyclopedia for hours on end, determined to excel in school so she could propel herself beyond the limitations of Victoria, where her father’s family had lived since founding the town in 1824. Neither of her parents had college educations, but they worked long hours—her father at the DuPont plant, her mother cleaning houses and waiting tables at Denny’s—so they could afford to send Cleo and her two brothers to Catholic school. When Cleo left home for Indiana to attend the University of Notre Dame, in 1993, she had her future planned out. She would become a chemical engineer, she had decided, “and someday I’d get married, have kids, drive a station wagon and all that,” she said. (She’d had a steady boyfriend in high school, a committed Mormon who never pressured her to have sex.) But at Notre Dame, she became infatuated with one of her roommates. On a trip home, she gushed about the girl and how beautiful she was, prompting her father to turn to her and ask point-blank, “Are you gay?”
The growing realization that she was attracted to women left Cleo both exhilarated and off-balance. During her sophomore year, a female classmate approached her at a party and said, “There’s something you need to know,” before leaning in and planting a long, toe-curling kiss on her. Cleo was floored. “I was far, far away from home, and I did not understand what was happening in my body and my brain,” she said. The rest of that year, she explained, “was like a second adolescence. Everything was new to me. I was curious, confused, rebellious. I stopped going to class. I was not in control of my emotions.”
By the time summer rolled around, she had dropped out of college and moved back home, where her bewildered parents put her on suicide watch. “One night I heard them whispering, and one was saying something to the effect of ‘She’s a pretty girl; she’ll find a husband and settle down here and everything will be fine,’ ” she said. “And I panicked. The idea of being stuck in Victoria for the rest of my life terrified me.” Cleo packed some clothes and what little money she had and left the next day. She decided to join the military and enlisted in the Air Force.
She spent two years abroad on active duty at Ramstein Air Base, in Germany, where she arrived in 1995, a year after the military’s “don’t ask, don’t tell” policy went into effect. For two more years, she was stationed at Kelly Air Force Base, in San Antonio. Except for one furtive romance with another female soldier, Cleo was careful to avoid any entanglements. She was vague about the details of her personal life, never sharing photos from her short-lived relationship or using gender-specific pronouns. When she went off active duty, in 1999—she continued to serve with the Texas Air National Guard—Cleo felt newly liberated, freed from the burden of pretending she was straight.
She enrolled in classes at the University of Texas at San Antonio and began frequenting Petticoat Junction, one of two lesbian bars in town, where she liked to go two-stepping. One summer night in 2001, two months after she had moved in with Nicole, she invited her new roommate to come along. Nicole was apprehensive about going to a gay bar, but Cleo prevailed. “Cleo told me, ‘Oh, it’s not a big deal; we’re just going dancing,’ ” Nicole said. “And then she started showing me how to two-step, and my whole world began spinning. I mean, I couldn’t see straight. I was literally swooning. I was like, ‘Okay, I’m in love.’ ”
Nicole took Cleo to a quiet neighborhood bar one night to formally ask her out. “We’d both always been afraid that being gay meant being alone, so we were giddy,” Nicole said. For the next eight years, they took turns working and putting each other through graduate school. When Nicole was accepted in 2002 into the master’s program in public administration at Syracuse University, Cleo followed her to upstate New York, commuting to a job she found an hour and a half away, in Rochester, and signing up with the New York Air National Guard. (“I was freezing and homesick, but we were together,” Cleo said.) Two years later, they returned to Texas, settling in Austin, where Cleo worked as a programmer while Nicole earned her law degree at the University of Texas. After Nicole graduated, in 2007, she landed a job in corporate law at Akin, Gump, Strauss, Hauer & Feld in San Antonio. She and Cleo moved back to the Alamo City, where Cleo enrolled in UTSA’s graduate program in applied statistics. Like many of their straight friends, they bought a house together, decided to undertake a renovation, and began talking about having children.
The next logical step was to get married, but since Texas barred them from doing so, they considered having a commitment ceremony instead. They scouted out venues in the Hill Country and deliberated over the guest list, but their enthusiasm for what felt like a hollow imitation of a wedding soon waned. “We’d invite all our friends and family to celebrate our love, spend a whole lot of money, and then what?” Nicole told me. “Nothing would have changed in terms of our legal status.” She and Cleo began to consider traveling to another part of the country to get married. Massachusetts had legalized same-sex marriage in 2004, and by the summer of 2009, when they were weighing their options, five more states—Connecticut, Vermont, New Hampshire, Maine, and Iowa—had joined the ranks. Eager to tie the knot before they started a family, they bought two plane tickets to Boston. “I wanted to be able to look our kids in the eye one day and tell them, ‘We’re as married as we can possibly be in the eyes of the law,’ ” Nicole said. “I wanted them to know that we went out of our way to make a permanent, lasting, outward, legal commitment to each other and that we would always be together.”
On the bright, clear morning of September 11, 2009, they were wed by a justice of the peace in the Boston suburb of Brookline. Because the cost of traveling across the country was prohibitive for their extended families, they had decided, in the end, to go by themselves. A court employee served as their only witness. There were no floral arrangements or any obvious nods to ceremony, except for the white tissue-paper bell the justice of the peace handed them. Neither Cleo nor Nicole felt like wearing a wedding dress and opted for jeans instead. “We were having to do things in a way that we had never intended,” Nicole said. “But we still felt such overwhelming joy.”
As they exchanged their vows, both of them wept. They celebrated by heading to Provincetown, a famously gay-friendly beach town on the tip of Cape Cod, where they marveled at the proliferation of rainbow flags and couples who looked like them. Cleo never showed physical affection in public—a legacy, in part, of “don’t ask, don’t tell”—but in a place where two women in love did not rate a second glance, she reached for her wife’s hand.
Cleo and Nicole knew that by marrying out of state, they were placing themselves in a catch-22. Just as Texas does not recognize same-sex marriages, neither does it grant gay and lesbian couples divorces. If they ever wanted to end their marriage, at least one of them would have to move to Massachusetts for a year to satisfy the state’s residency requirements. By marrying, and then returning to a state that did not recognize their marriage, the two women were bound to each other in a way that straight couples are not. That fact was not far from their minds when they flew back to San Antonio wearing their wedding rings—two identical platinum bands, each bearing the same inscription, in Hebrew, from the Book of Ruth (“Whither thou goest, I will go”). “We would never have a wedding album to show our kids, and we didn’t know if we would ever have legal recognition in our home state,” Nicole told me. “But we had our rings, and our rings showed the world that we were married.”
Four years earlier, when Rick Perry was running for his second full term as governor of Texas, he had endorsed a ballot initiative that asked voters to approve writing a same-sex marriage ban into the state’s constitution. To announce his support for the amendment, known as Proposition 2, he chose a Fort Worth church as his backdrop. He invited “pro-family Christian friends” to join him on June 5, 2005, at Calvary Cathedral’s school gym, where his political team planned to film the event for a campaign commercial. Though Proposition 2 did not actually require his signature to be put on the ballot that November, Perry needed to shore up support among evangelical voters in what was expected to be a tight primary race against Kay Bailey Hutchison.
As Perry looked on, Rod Parsley, a prominent televangelist, warmed up the crowd. He launched into a full-throated attack on gays and lesbians, casting them as diseased—“Only one percent of the homosexual population in America will die of old age,” he proclaimed—and a threat to families. “We are not to sacrifice our children on the altar of sexual lust of a few!” Parsley roared. Afterward, the crowd cheered as Perry stepped forward to sign two measures that lawmakers—who had failed to pass a school finance bill and other critically important legislation that spring—had readily approved: an initiative to put Proposition 2 on the ballot in November and a bill requiring minors to obtain parental consent before seeking an abortion. During a press conference that followed in the church’s school library, a reporter asked the governor what he would tell gay veterans who were returning home from Iraq and wanted the right to wed someone of the same sex. “Texas has made a decision on marriage,” Perry declared, “and if there’s a state with more lenient views than Texas, then maybe that’s where they should live.”
Though Hutchison announced just a few weeks later that she would be running for reelection to her Senate seat instead, the effort to get social conservatives to vote that November using wedge issues like gay marriage moved forward under the guidance of a coalition called the Texas Restoration Project. Funded by Perry backers, the group sought to register 300,000 new “values voters” and enlist 1,000 “patriot pastors” to deliver them to the polls—a strategy similar to the one that had propelled George W. Bush into a second term in the White House the previous year. The fact that gays and lesbians were already prohibited from marrying under Texas law hardly mattered; for the governor and other conservative lawmakers who stood to benefit from increased turnout, Proposition 2 was a powerful tool. At the bill-signing event in Fort Worth, Perry had won over pastors by saying, “One of the great myths of our time is that you can’t legislate morality.”
The ballot initiative might not have come about in the first place had Texas not found itself at the center of a national conversation about gay rights two years earlier. In 2003 the Supreme Court declared, in Lawrence v. Texas, that the state’s anti-sodomy laws were unconstitutional. The case had begun in Houston in 1988 when sheriff’s deputies responded one night to a reported weapons disturbance by entering the private residence of a man named John Geddes Lawrence; he and a companion, Tyron Garner, were subsequently arrested, jailed overnight, and convicted of engaging in “deviate sexual intercourse.” Writing for the majority, Justice Anthony Kennedy declared that the Texas law prohibiting sodomy “demean[ed] the lives of homosexual persons” and violated the right to privacy guaranteed by the Fourteenth Amendment. The law served no purpose, he wrote, that could “justify its intrusion into the personal and private life of the individual.”
In an impassioned dissent, Justice Antonin Scalia argued that moral disapproval of homosexuality was justification enough. He warned that the decision would spur a “massive disruption of the current social order” and lamented that the ruling “effectively decrees the end of all morals legislation.” He cautioned that Lawrence set the stage for the legalization of same-sex marriage—a prediction that state legislators around the country took to heart, authoring a flurry of bills that would put constitutional amendments against gay marriage up to a popular vote. In Texas, opponents of gay marriage invoked biblical teachings and tradition, arguing that morality could and should be legislated, even if doing so meant imposing the will of the majority on a minority. “This bill does discriminate,” said state representative Warren Chisum when he authored the voter initiative that Perry would later sign. “It allows only for a man and a woman to be married. This bill does discriminate against any other kind of marriage.” Amending the constitution was necessary, he said, because “marriage between one man and one woman is essential to the future of this state.”
The message resonated with evangelicals, who flocked to the polls on Election Day. On November 8, 2005, voter turnout reached 17 percent, up from 12 percent in the previous off-year election. Among this small but powerful slice of the electorate, support for Proposition 2 was overwhelming, with Texans voting in favor of the ban by more than three to one. Out of 254 counties, Travis County was the lone dissenter. In the years following Lawrence, Texas would be one of 27 states to ratify constitutional amendments banning same-sex marriage.
Yet as Scalia had warned, the matter was hardly settled, as became clear in 2013, when the Supreme Court took up an equally pivotal gay-rights case, United States v. Windsor. The case was brought by New York resident Edith Windsor, who had married her partner of more than forty years, Thea Spyer, in Toronto in 2007. Spyer died two years later and left her sizable estate to her wife, but because the federal government did not recognize their marriage, Windsor was required to pay $363,053 to the IRS. (Had they been a heterosexual couple, she would have qualified for a marital exemption and owed nothing.) Her lawyers argued that the statute in question—the Defense of Marriage Act, which barred the federal government from recognizing the marriages of same-sex spouses—was discriminatory and therefore unconstitutional. On June 26, 2013, the court agreed in a groundbreaking 5–4 decision. Writing for the majority, Kennedy observed that DOMA demeaned homosexuals, “whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” Though the court stopped short of finding that gays and lesbians had a constitutional right to marry, it required the federal government to recognize same-sex marriages in those states where they were permitted.
The Windsor ruling, which provided a road map for challenging same-sex marriage bans, buoyed gay-rights advocates. Believing it was only a matter of time before the Supreme Court would have to take up the issue again and give a definitive ruling for all fifty states, lawyers at the LGBT civil rights group Lambda Legal Defense and Education Fund and at firms around the country began strategizing about which test case might be the best vehicle to win the final fight for same-sex marriage. Many saw their historical counterpoint in the civil-rights-era struggle to strike down anti-miscegenation laws, which the Supreme Court addressed in the 1967 case Loving v. Virginia, ending all race-based restrictions on marriage years before interracial unions had gained widespread public acceptance.
Days after the Windsor ruling, the deputy general counsel in the San Antonio office of Akin, Gump—an openly gay man named Frank Stenger-Castro—stopped by the office of Barry Chasnoff, the firm’s general counsel. “Barry,” he said. “We need to file a lawsuit.”
Cleo and Nicole had always known they wanted children. “The question was, How do you have a baby when you’re in a same-sex relationship?” Cleo told me. Like heterosexual couples who face intractable fertility problems, lesbians have two options: adoption or assisted reproductive technology. Both Cleo and Nicole longed for children who were biologically connected to them, and so they decided they would take turns getting pregnant, using the same anonymous sperm donor. Cleo, who at 37 was a year older than Nicole, would try first.
They began trying to conceive in 2010 by means of artificial insemination, but six attempts over eight months proved to be unsuccessful. “All my friends were having babies, and of course I was happy for them, but it hurt,” Cleo said. “I had this hole in my heart because every month I would get my hopes up, and then . . . nothing.” She and Nicole took out a second mortgage to finance a single round of in vitro fertilization, a much costlier method with a significantly higher success rate. It was Cleo’s last chance at carrying a child. When the home pregnancy test turned up positive the next month, she and Nicole both screamed. “Our son truly is a miracle,” Cleo said.
Most expectant mothers spend the months leading up to the arrival of their first child taking birthing classes and decorating the nursery; because Texas did not recognize Cleo and Nicole’s marriage, they spent much of that time trying to ensure that Nicole would have legal rights as a parent once their child was born. A “second-parent adoption” would enable her to make the sorts of daily decisions that most parents take for granted—from having a say in their son’s medical care to enrolling him in elementary school—and would secure her custody rights in the case of divorce or Cleo’s death. They hired a lawyer who had experience representing same-sex couples in San Antonio who wanted to adopt. In Texas, each case is at the discretion of the judge who hears it, and hostility from the bench toward gay parents is not uncommon; attempts by Annise Parker, Houston’s mayor and its most high-profile lesbian, to adopt two foster children when she was city comptroller in 2004 were met with so much resistance that she had to ask for a second judge to hear her case. (Heterosexual couples who use a sperm or egg donor to conceive a baby can sidestep second-parent adoption entirely, since both spouses are recognized by law to be the child’s parents.) The second-parent adoption process required that Cleo and Nicole submit to a home study, conducted by a social worker who would report back to the court with an assessment of their household and Nicole’s fitness to be a parent.
The study spanned an afternoon. “She asked about my finances, any past traumas I had experienced, my mental health, had I ever been in counseling and what was it for,” said Nicole. “Even though we had been assured this was a friendly interview, it felt very invasive.” The social worker walked around their home, opening drawers and riffling through closets. Toward the end of the nearly five-hour visit, she posed a question that made Nicole wince. “She asked me, ‘Why do you want to adopt Cleo’s child?’ ” Nicole recalled. “And I said, ‘Because he’s my son.’ I remember she looked down and swallowed, and then she rephrased the question. She said, ‘I know. But would it benefit him to have two parents instead of one?’ She was trying to help me. She was trying to give me the right answer. But to me, the right answer was ‘Because this is a stupid thing I have to do to get my son.’ ”
By the time Cleo went into labor, on June 9, 2012, the raft of paperwork that their attorney had helped them draft included a declaration by Cleo—legally nonbinding but one they hoped a judge would take into account—stating that should anything happen to her, she wanted Nicole to raise their child. (Family court judges may grant custody to grandparents or other blood relatives if second-parent adoption papers are not in place, though these cannot be filed until six months after a child is born.) Determined to have a natural birth, Cleo labored for 42 hours before undergoing an emergency C-section. “Holding our baby, I felt this overwhelming euphoria,” Cleo said. “I couldn’t even put words together. I just had this immense feeling of bliss.”
For Nicole, who marveled at the tiny baby boy dozing in her arms, the emotions stirred that day were more complicated. She watched as Cleo filled out the form for their son’s birth certificate, which, per Texas law, allowed only one mother to be named. Although she already knew the answer, Nicole asked a nurse if she could write her name down too. “He was conceived in our hearts and our minds and inside our marriage,” Nicole told me. “He belonged to both of us. But under the law, I was a stranger to my son.”
The following summer, as the partners at Akin, Gump contemplated suing the State of Texas, Nicole and Cleo busied themselves with outings to the zoo and the playground with their one-year-old. By then Nicole had left lawyering behind; work in mergers and acquisitions had dried up after the recession, and though she had briefly gone into litigation, she had never come to enjoy it. She and Cleo moved back to Austin, where Cleo worked as a biostatistician and Nicole tried her hand at digital marketing. Happy with these newfound roles, the two were starting to make plans for a second child. They had been gratified to see their three surviving parents come to accept their relationship, and then more fully embrace it after the birth of their son. “Once we had a kid, they could relate to us just like any other married couple,” Nicole told me.
Nicole still kept in touch with her former colleagues, and when she was contacted by the firm six weeks after the Windsor ruling, she readily agreed to help Chasnoff and the other attorneys who had begun doing research for a lawsuit. In a conference call that August, she and Cleo fielded questions about the day-to-day wrongs they experienced living in a state that failed to recognize their marriage. At the top of their list was the uncertainty over Nicole’s parental rights, a problem that had only recently been resolved when her second-parent adoption papers were finalized.
Chasnoff had spoken with the head of Akin, Gump’s management committee in New York in July, and the firm—intrigued with the notion of taking on a potentially landmark case—had given him the go-ahead. Chasnoff estimated that the firm, which would handle the case pro bono, would spend $100,000 in experts’ fees and rack up at least $1 million in billable hours. In August one of the firm’s top litigators, Neel Lane, told Chasnoff that he wanted in. “How could the case have been any more compelling?” Lane told me. “There were laws on the books aimed specifically at depriving gays and lesbians of their rights. And there was a group of people—our friends, people we love—for whom Texas was still a Jim Crow state.” Lane, who is descended from a storied line of Texans that includes Sam Maverick, a signer of the state’s 1836 Declaration of Independence, did not want to see the case argued by East Coast lawyers or an out-of-state advocacy group. “Rather than having outsiders come in and say, ‘Shame on you, this law is unconstitutional,’ I thought that we needed to vindicate the rights of our fellow citizens and neighbors ourselves,” he said. “I thought it was important that this case be argued with a Texas accent.”
He, Chasnoff, and Stenger-Castro knew that the success of any lawsuit they brought depended on finding the right plaintiffs. With that in mind, Stenger-Castro reached out to an old friend in Plano named Mark Phariss, who had mentioned to him in the days following the Windsor ruling that someone in Texas needed to file suit. An amiable, conflict-averse man in his mid-fifties, Phariss was hardly an activist; though he and his partner, retired Air Force major Vic Holmes, had been together for nearly two decades, he had taken pains to conceal his sexual orientation at the Dallas corporation where he worked as in-house counsel, and he counted conservatives among his friends. (He and Greg Abbott attended Vanderbilt University Law School together, and he had flown to Houston in 1984 to see his old classmate in the hospital after Abbott was struck by a falling tree and paralyzed from the waist down.) Phariss worried about the repercussions that joining the suit might have on his career—as well as his and Holmes’s personal safety—but after further consideration, the two men felt compelled to take part. “Someone had to step forward, and we didn’t see anyone else doing it, so we did,” Holmes told me.
Everyone agreed that the case stood a better chance of success if the plaintiffs included both a couple who wanted to marry, like Phariss and Holmes, and a couple whose out-of-state marriage was not recognized. Cleo and Nicole were an obvious choice, but they demurred over concerns for their son’s safety. When they reached out to their network of friends to see who might be willing to sign on, people were slow to respond. “There was a lot of fear and a lot of hesitancy about bringing a lawsuit at all,” said Cleo. “Some of our friends said things like ‘Are you sure it’s the right time to bring this case? Because if you lose, it will set us back years.’ ” They became convinced that they should sign on as plaintiffs as they talked one evening that fall. “Really, it came down to one thing: if we didn’t do this, how would we explain it later to our kids?” said Nicole. When neither of them could come up with a good answer, they called Akin, Gump. Because plaintiffs are listed in alphabetical order by last name, the lead plaintiff would be Cleo, and the case would be styled as De Leon v. Perry. The firm filed suit on October 28, 2013.
The Texas plaintiffs were in good company. Around the country, dozens of lawsuits followed in Windsor’s wake, challenging the constitutionality of same-sex marriage bans, claiming that they violated the equal protection clause of the Fourteenth Amendment. The equal protection clause, ratified shortly after the Civil War to guarantee the rights of emancipated slaves, grants all citizens the same fundamental liberties and served as the basis for the Supreme Court’s 1954 ruling in Brown v. Board of Education. Using this rationale, Lane filed a motion for preliminary injunction in November asking U.S. district judge Orlando Garcia to lift Texas’s ban pending a later trial, declaring that the harm being done to his clients was immediate and ongoing. Greg Abbott, as attorney general, countered by arguing against “judicial interference” in voter-backed legislation. “Marriage, as traditionally understood, is ‘the foundation of the family and of society, without which there would be neither civilization nor progress,’ ” read the state’s brief, quoting a nineteenth-century Supreme Court ruling. “Texas’s protection of this critical institution and reservation of marriage to opposite-sex couples is therefore rationally related to a legitimate state interest.” (The attorney general’s office declined to comment for this article, asking that its briefs serve as its response.)
Garcia held a hearing on the matter on February 12, 2014, at the federal courthouse in San Antonio, where each side was allotted twenty minutes to make its case. The four plaintiffs sat together, listening as assistant solicitor general Michael Murphy introduced the notion of responsible procreation—asserting that the state ban was grounded in sound public policy, not prejudice. “Promoting safe, stable environments for procreation and rearing children by a mother and a father are well-recognized, legitimate government interests,” he told the judge. “The purpose of Texas marriage law is not to discriminate against same-sex couples but to promote responsible procreation.” (As for why such statutes did not prevent the elderly and the infertile from marrying, he said only that “the Democratic process involves compromise and line-drawing that often results in both over- and under-inclusive laws.”) He emphasized the need to preserve tradition and not upend the status quo. The plaintiffs were asking the court to “restructure the institution of marriage,” he insisted. “Plaintiffs have not clearly shown that . . . rewriting one hundred and fifty years of Texas law would serve the public interest.”
When it was Lane’s turn to address the court, he spoke slowly but deliberately as he explained that his clients were asking not to rewrite the law but rather to have the law—specifically, their constitutional rights under the Fourteenth Amendment—enforced. He drew a parallel with Loving, which guaranteed the right to marry someone of another race. Sexual orientation was an “immutable characteristic,” like race, Lane noted, adding, “You can’t define away those characteristics in limiting marriage.” He cited the state’s responsible-procreation argument as “fundamentally irrational” and one that “shoves the children of same-sex married couples out in the cold.” And he chided the state for relying on a definition of marriage in its briefs that came from a dictionary published in 1755. “[This was] an age when slavery existed,” he said. “Theft was punishable by execution. Drawing and quartering were public spectacles, and . . . women could not vote and often could not hold property. Needless to say, tradition is never enough to uphold an otherwise unconstitutional law.”
Garcia concurred when he handed down a sweeping ruling two weeks later overturning the state’s same-sex marriage ban. “Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent,” he wrote. “State-imposed inequality can find no refuge in our United States Constitution.” Anticipating that Abbott would immediately appeal, Garcia stayed his ruling, delaying it from taking effect until it was reviewed by the Fifth Circuit Court of Appeals in New Orleans. Though no marriage licenses would be issued that afternoon, it was a tremendous legal victory nonetheless.
When Nicole learned of Garcia’s ruling, she crept into the bedroom where Cleo lay beside their son, trying to soothe him to sleep. The boy had undergone minor surgery that morning to help stave off recurring ear infections and was in dire need of a nap. Smiling, Nicole silently mouthed, “We won.”
On January 9 spectators began lining up outside the Fifth Circuit courthouse before dawn, despite a blast of frigid weather that lent New Orleans an unexpected bleakness. In addition to Texas, the two other states the court oversees—Louisiana and Mississippi—were also scheduled for oral arguments that morning, in appeals they had pending in their respective same-sex marriage cases. The gumwood-paneled walls of the gorgeously ornate West Courtroom, where the arguments would be heard back-to-back, were lined with bronze-cast sconces, each fashioned to resemble a pair of intertwined rattlesnakes.
The prevailing wisdom that morning was that, as one of the nation’s most conservative courts, the Fifth Circuit would uphold all three states’ bans. But that notion quickly came undone when the three-judge panel’s swing vote, Reagan appointee Patrick Higginbotham, expressed open skepticism of such laws right from the start. The legal landscape had radically changed in the eleven months since Garcia had stayed his ruling; when De Leon v. Perry went to federal district court in San Antonio, same-sex marriage was still illegal in 33 states; now only 14 states’ bans remained on the books. This momentum was palpable in the courtroom as lawyers from Louisiana and Mississippi took their turns at the lectern. When an assistant attorney general from Mississippi claimed that his state was not yet ready for same-sex marriage, Higginbotham interrupted. Invoking similarities between the Jim Crow past and the matter at hand, the 76-year-old Alabama native said with a knowing glance, “Those words, ‘Will Mississippi change its mind?,’ have resonated in these halls before.”
By the time Texas solicitor general Jonathan Mitchell stepped up to make his case, late in the morning, he had watched his peers in Louisiana and Mississippi take a drubbing. He touched on many of the same themes, cautioning that same-sex marriage was an issue for the electorate, not the judiciary, to decide. But to show that Texas was not violating the equal protection clause, he had to prove that the state had a meaningful reason to treat gays and lesbians differently, and so he doubled down on the responsible-procreation argument, making it the focus of his allotted thirty minutes. Nicole, seven months pregnant by then, sat poker-faced beside Cleo as Mitchell continually failed to acknowledge that gays and lesbians also produce and adopt children. Three minutes into his presentation, Higginbotham interrupted, asking him to explain the cause-and-effect relationship between gay couples enjoying the right to marry and heterosexuals engaging in irresponsible behavior. “Are you saying that if you allow same-sex marriage, that the Legislature is justified in concluding that that will increase the number of children born out of wedlock?” Higginbotham said.
“That’s not our contention at all,” said Mitchell. “What we’re saying is that marriage is a subsidy,” he continued, referring to the hundreds of legal and financial benefits that the state confers on wedded couples. “The state is entitled to reserve that subsidy for the relationships that are more likely to advance the state’s interest in reducing unplanned, out-of-wedlock births, and withholding that subsidy from marriages that will do nothing to advance the state’s interest.”
“Marriage is a subsidy?” asked Justice James Graves, the panel’s sole Obama appointee, leaning forward. “And there is no right to marry? It’s just a subsidy?”
“The state’s not denying the right to live together, it’s not denying the right to choose their names or hold a wedding ceremony,” Mitchell countered, after some back and forth. “It’s simply—”
“You just can’t get married,” interjected Graves.
Justice Jerry Smith, also a Reagan appointee and the panel’s staunch social conservative, remained largely silent as the solicitor general made his case. In an unexpected twist, Mitchell then cast gays and lesbians as hopeless romantics. “The plaintiffs,” he said, “view the institution of marriage as existing only to celebrate the mutual love and commitment of two people. The state’s marriage laws reflect a different view. The ‘celebration of love’ component is important, but it’s secondary to . . . reducing the incidence of unplanned, out-of-wedlock births that put a strain on the state.” When he went on to advocate a “wait and see” approach so that the “democratic process” could decide whether same-sex marriage was beneficial for Texas, Graves pointedly asked how many years that might take. “What’s the magic number?” he asked. “Twenty? Twenty-five?” Mitchell hedged on that question, saying it was still unclear how the “social experiment” of same-sex marriage would play out, contending that it was “too early for Texas to join the fray.”
“To what extent is this fear or concern born of a hostility to homosexuality?” Higginbotham pressed. The judge added that he thought the state’s argument “dances very close.”
“We certainly don’t think it’s accurate or fair to suggest that the supporters of traditional marriage laws are acting out of animus,” Mitchell told the judges. “They’re acting out of a deeply held belief of what the purposes of the institution of marriage are for.” When Graves asked him to define animus, Mitchell said, “Animus would be irrational prejudice or hatred and—”
“As opposed to rational prejudice,” Higginbotham scoffed, drawing laughter from the gallery.
Mitchell smiled uneasily and tried to forge ahead, but Graves stopped him. “Fear of the unknown or a lack of understanding of people who are different, and insensitivity to the preferences of people who are different, those are not things that you would equate with animus?” asked Graves, who is black. The ban, Mitchell later clarified, “is rooted not in animus but in the biological reality that only opposite-sex couples are capable of producing children.”
When the solicitor general’s time was up, Lane rose to address the judges. “What you heard from this lectern is an incredibly narrow, blinkered view of marriage that would be unrecognizable, really, to anyone who’s experienced it, witnessed it, or aspires to it,” he said. “It’s quite amazing, because one of the consistent accusations has been that we are attempting to redefine marriage. And I have never seen as radical a redefinition of marriage as I heard at this lectern [from] the State of Texas.”
After mostly friendly grilling from the judges, Lane posed the most thought-provoking question of the hour. “If marriage is good for children, why deny marriage to same-sex couples with children?” he asked. “The reality is that this law depriving same-sex couples of the right to marry is not intended to modify or guide the behavior of opposite-sex couples at all. Everyone knows that this law is really about the moral disapproval of homosexuals. But since the Supreme Court has explicitly rejected that as a rationale that can support the law, counsel for the state has to come up here and attempt to redefine it with this somewhat, I would suggest, half-baked justification that narrows what actually marriage is . . . and convince you that this is what the people of Texas believe marriage is.”
The judges would not rule that day but were widely expected to hand down a decision in the spring. After the hearing, a large crowd of same-sex marriage supporters, some holding placards that read “Love Will Win,” gathered outside the white marble courthouse. The mood was cautiously optimistic; few had expected Higginbotham to be so sympathetic. The plaintiffs from all three states took turns stepping up to a makeshift podium, facing a scrum of reporters, to thank their attorneys and express their determination to win. Before the group dispersed, Phariss grabbed Holmes’s hand. “Before Vic and I came here today, we knew we were on the right side of history and the right side of love and compassion,” Phariss said. “Today, after hearing all the arguments, we know we’re on the right side of the law.”
Exactly one week later, Cleo was on a conference call at work when she saw a breaking-news update flash across the screen of her iPhone. “AP: Supreme Court Will Decide Gay Marriage Issue This Term,” it read. Suppressing the urge to bolt from the room and scream, she stayed on the call and messaged Nicole on Google Talk instead. Nicole, who had seen the news on Twitter moments earlier, filled in the details. The court had announced that it would hear cases from four states—Kentucky, Michigan, Ohio, and Tennessee—in which the Sixth Circuit had upheld their same-sex marriage bans on appeal. In doing so, the Sixth Circuit had broken ranks; since Windsor, all other circuit courts had overturned states’ marriage bans.
In the excitement of the moment, neither Cleo nor Nicole fully grasped the implications this had for their case. The Fifth Circuit might not issue a ruling before the Supreme Court weighed in, and oral arguments were not scheduled to start in Washington, D.C., until April. It was possible now that there would be no resolution before their baby girl was born. But all that mattered that afternoon was the larger victory. “Hooray that’s so great!!” Cleo typed.
For Texas lawmakers, the decision was yet another affront perpetrated by activist judges and an overweening federal government. Senator Ted Cruz publicly expressed his determination to amend the U.S. Constitution to prohibit judges from overturning same-sex marriage bans, a stance that embodied state legislators’ anger over what they saw as their impending inability to define marriage for Texas. Earlier in January, as the Legislature convened for its eighty-fourth session, state representative Cecil Bell had filed a bill called the Preservation of Sovereignty and Marriage Act, which would block government employees from receiving their salaries if they issued marriage licenses to gay couples. (“Texas is a sovereign state and we have the right to define marriage,” Bell said in a press release.) Senator Donna Campbell had filed a measure to amend the state constitution so as to protect business owners from perceived infringements on their religious liberty, a move that would allow those who had moral objections to same-sex marriage—like a Christian-owned wedding vendor—to deny service to gays and lesbians.
Regardless of what the Legislature does this session, most legal observers believe that the Supreme Court is likely to render a decision that will make same-sex marriage legal in all fifty states. The court’s four liberal justices are expected to be joined by Justice Kennedy, who wrote the majority opinions in both Lawrence and Windsor. But the matter is far from settled, since Kennedy is also a fierce believer in states’ rights. Until the Supreme Court rules—or until the Fifth Circuit decides to act—nothing is certain for Cleo and Nicole, who are once again having to draw up second-parent adoption papers so that Cleo can secure parental rights to their baby girl. In March, after Nicole gives birth, the same scene will play out in the maternity ward as when their son was born, but this time their roles will be reversed; Nicole will write down her name on the paperwork for their daughter’s birth certificate. Cleo will have to stand by and watch.
Cleo and Nicole still hope for a happy ending—one in which Texas recognizes their marriage and, in turn, their role and rights as parents. When I visited them again one night this winter, I asked how they would celebrate if the court rulings went their way. It was too late for a wedding—they had done that already—so what would their marriage-recognition party look like? Sitting beside each other on the couch, they both grinned at the question. “Well, we’d have barbecue,” began Cleo. “Barbecue and beans.”
“Yeah, we already had our Boston wedding, so we’d go in the other direction,” said Nicole. “Everyone would wear cowboy boots—”
“—and bolo ties,” said Cleo. “We’d have bolo ties at the door, for people who don’t have them.”
“The invitations could say something like ‘Wear your snap shirts and your boots and celebrate this victorious moment with us,’ ” said Nicole.
“It would be fun to have a barn dance,” Cleo offered.
“And play only country music,” agreed Nicole.
“If we did it in San Antonio, everyone could come,” Cleo said, smiling at the thought.
“We could finally have a wedding album,” said Nicole. “For the kids—we could do that for the kids. I remember looking at my parents’ wedding album all the time when I was a kid and just loving it. My parents looked so happy and in love. And so young!”
“We could hire a photographer,” Cleo said.
“We’ll definitely need a photographer,” Nicole said, suddenly in planning mode. “If we’re going to have a wedding album, then we should walk down the aisle.” She was already getting ahead of herself. “And this time,” she said, daydreaming, “we should wear wedding dresses.”