by Lloyd McDonald | photos courtesy Abby Rubenfeld
Looking back over Abby Rubenfeld’s life, it’s no surprise why she became a de facto leader of the LGBT+ equal rights charge for marriage equality — not only in Tennessee but across the country.
Rubenfeld has been a life-long champion for inclusion.
As a child in Florida, she experienced discrimination at the hands of “exclusive” establishments, like country clubs, excluding her family for no other reason than their Jewish heritage. This went so far as to not allow her to visit these clubs, even when invited by friends who were members. These early experiences drove her to fight for the disenfranchised.
The Fight for Equality
As an out lesbian attorney with a family law practice here in Nashville, Rubenfeld is sought out by the LGBT+ community when issues of family law arise. This notoriety naturally led her toward becoming the champion of the marriage equality movement. After the decision in United States v. Windsor, the Tennessean wanted to interview Rubenfeld about the case and what that meant for Tennessee. This case challenged the federal government’s stance of refusing to recognize legally performed marriages because of the Defense of Marriage Act (DOMA) and as such deprived same-sex couples of their Fifth Amendment due process rights. During that interview, Rubenfeld was asked if there would be a challenge to this law in Tennessee, to which Rubenfeld responded immediately, “HELL YES!”
There was just one problem. Rubenfeld didn’t know anyone with a case to challenge the law. She began assembling a national group of attorneys in all three grand divisions of the state to help develop the strategy to challenge the law and find plaintiffs to make Windsor apply to the state. Rubenfeld gathered plaintiffs from across the state in an e ort to show that these violations of constitutional rights would affect people all over Tennessee. With the cases they assembled, the team of attorneys began building their cases illustrating citizens were suffering direct and irreparable harm as a result of their validly performed marriages not being recognized by the State of Tennessee, legally known as a standing.
Building a Case
The first couple with standing was an Afghanistan veteran and his husband who lived on a navy base in Memphis. After Windsor, the law at that time deemed them married on Base (where federal law applied) and unmarried as soon as they left the base (where state law applied).
Then there was a gay couple who relocated from San Francisco because one husband’s job moved to Tennessee. With this move, they faced their marriage being invalidated and stood to lose all of the legal rights and protections that came with a legally recognized marriage.
The final couple was a lesbian couple who were professors in Knoxville. They had been legally married elsewhere and were now expecting a baby. With the risk of legal harm being posed to an unborn child, the implications of this unconstitutional law were even broader. The biological mother’s name could be listed on the birth certificate, however, her wife’s name couldn’t be listed. All three couples and the unborn baby faced significant and irreparable harm because of how the law was written.
A Small Win
Rubenfeld and the team of attorneys brought all of their cases to the Federal District Court in Nashville. They won all of the cases. However, with decisions that were contrary to Tennessee law, the state immediately asked the judge to stay the orders while they appealed the decision to the Sixth Circuit Court of Appeals in Ohio. The judge declined. This was great for the plaintiffs, especially those who were expecting the baby! They had the child before the appeal could be heard and they were able to get both mothers’ names listed on the birth certificate. Unfortunately, that didn’t mean any other LGBT+ couples expecting children could do the same.
At the appeal, the judges heard similar cases from the other states in the Sixth Circuit—Kentucky, Ohio, and Michigan. The three-judge panel ruled unfavorably, not only to the plaintiffs but also all of the other cases regarding LGBT+ issues from the other states, too. While this was a temporary blow, this ruling was the precise catalyst that was necessary to take the cases before the United States Supreme Court.
Taking it to the Supreme Court
This loss at the Sixth Circuit Court of Appeals was significant, not only to the plaintiffs but the rest of the country. Until the Sixth Circuit Court of Appeals made their decision, all of the other U.S. Circuit Courts of Appeals had ruled in favor of marriage equality. While this is great in those circuits’ jurisdictions, it did nothing for the rest of the country that didn’t have an appeals court decision standing in their corner. Once the Sixth Circuit made their decision and created a conflict in lower court decisions, the Supreme Court could weigh in on the law. The Supreme Court requires a discrepancy in U.S. Circuit Courts of Appeals’ decisions before they will even consider looking at a case. The crux of the Sixth Circuit decision was that people in other circuits with a favorable decision would be treated differently under federal law than people in the Sixth Circuit.
Now that a conflict in Appellate Court decisions existed, Rubenfeld, her collaborating attorneys, and the teams of attorneys from the other states immediately came together and started working on an appeal to the Supreme Court. The Supreme Court said they would hear two questions from the appeal. The first and more sweeping question was whether the 14th Amendment required a state to license a marriage between two people of the same sex. Rubenfeld said, “There is a long-standing history of things happening incrementally with changes in the law. In short, judges and justices generally don’t like to issue sweeping changes in law or policy because of the upheaval it can cause.” Rubenfeld was cautiously optimistic about the justices of the Supreme Court answering the first question affirmatively. The second question, regarding the recognition of same-sex marriages throughout the states, seemed to be the next logical step after the Windsor decision. She was very confident that the question would be resolved favorably.
A Big Victory
The arguments for both questions in the Obergefell v. Hodges decision were heard on April 28, 2015. Because of the nature of questions that the Supreme Court must answer, decisions are never handed down the day the case is argued. The plaintiffs and attorneys had to wait for two seemingly long months until June 26 — the eve of PRIDE in Nashville — when the Supreme Court did the right thing and said that both questions are to be answered, unequivocally, with a yes.
In the five years since the Obergefell decision, family law has changed significantly in Tennessee. Rubenfeld said, “It has made my job as a divorce attorney significantly easier. Now I can file my clients’ divorce cases in divorce court.” Before the decision, if a marriage wasn’t recognized by the state the clients lived in, state divorce courts could not touch the case, even though they were legally married in another state or country. “If a same-sex couple needed to split up, they could not go to divorce court but had to use creative and more complicated legal theories. This usually ended up being more costly and caused the case to conducted in courts that might not be familiar with divorce principles,” explained Rubenfeld.
This created some extra, legal hurdles to overcome — essentially treating the dissolving committed relationships as a dissolving business partnership. With these hurdles, chancery courts were usually asked to intervene for a same-sex divorce. Further, this case has paved the way for gay couples to get all of the other benefits that heterosexual, married couples are entitled, such as equal access to health insurance, being able to make medical and end of life decisions for one other, inherit property (especially when there is death without a will), and the ability to start a family and have both spouses listed as the parent of the child on the birth certificate or adoption papers.
Continuing the Fight for Civil Rights
With all that has been accomplished, Rubenfeld is looking at the future of LGBT+ civil rights. With the judges that are currently being appointed to the federal courts, progress could slow down, stop completely, or even reverse. She said, “There is still
a series of bills that the Tennessee Equality Project has dubbed ‘Slate of Hate’ that state legislators are attempting to enact to erode minority rights. Then there are changes to the definitions of words like the word ‘sex’ to the Title VII protections so that LGBT+ people won’t be protected. The third area that faces infringement is religious freedom laws. These laws allow someone to refuse to provide services to someone if something about that person violates that provider’s deeply held religious beliefs.” Rubenfeld believes that religious freedom laws could be particularly problematic for other minority groups. She cited the example of the bakers who were allowed to refuse to bake a wedding cake for a gay couple as one such example stating, “While it is just inconvenient that they are allowed to refuse to bake a cake, there are deeper underpinnings to these types of laws, including limiting LGBT+ and minority persons’ access to healthcare, legal representation, and many other similar types of services.”
Rubenfeld concluded by saying “The threats to the progress we have made will have broader implications than to [just] the LGBT+ community. They will affect religious and racial minorities, and things can easily change back to how they were in as little as one election- cycle.” She continued, “The best way that any one of us can make a difference is to get involved politically and VOTE. Know the candidate, know the issues, and choose the candidate who will ensure you, not only a seat at the table but a voice in the discussion.”