Berman: Passion to fight injustice fuels Michigan lawyer on same-sex marriage case
For gay people, 2005 was not a good year: Michigan's constitutional amendment banning same-sex marriage took effect, dashing hopes and canceling partner benefits.
Same-sex marriage was still a boutique cause, one that remained, social critic and gay activist Andrew Sullivan wrote at the time, "the most elusive prize of all."
That was the year Dana Nessel, turned down for a promotion, resigned as an assistant prosecutor in Wayne County to start her own private practice.
Although she was a criminal law expert, Nessel — the mother of two young sons — felt an affinity for family law. Crusading for same-sex marriage wasn't yet in her sights.
By 2010, she'd fought hard for Renee Harmon, a client desperate to gain visitation rights to children she'd raised, but lost, after breaking up with her lesbian partner. Under Michigan law, which allowed single parents to adopt, but not both members of a same-sex couple, Harmon had been relegated to the role of "legal stranger."
While Nessel lost that case, the disappointment stiffened her resolve. She would remedy this injustice she'd witnessed as Harmon's lawyer, one way or another. She saw how Michigan's punitive laws against gays and lesbians ruptured families, caused unspeakable pain to adults and their children, and served no societal purpose.
Then, in 2011, April DeBoer and Jayne Rowse walked into her office. Already a lawyer with a cause, she now had another asset: lesbian clients whose love, warmth and caring for special needs children could touch hearts and minds, perhaps even change them.
Anyone who walked into DeBoer and Rowse's Hazel Park living room saw an exceptional and growing family. The parents were "Mama" and "Mom" to their kids. But not to the state of Michigan.
Their children had been abandoned or considered unadoptable. Both nurses, DeBoer and Rowse had rescued Jacob, a boy who weighed barely a pound at birth and who wasn't expected to live, who thrived in their care. They had cats, dogs, and a family of three, then four, and soon five children.
But for all their media appeal, the DeBoer case faced huge obstacles. "I had to fight everybody to file this case," Nessel, who proposed to her girlfriend, Alanna Maguire, outside the Supreme Court in April, told me a year ago. "Everybody told me not to do it. We didn't get any LGBT support."
While U.S. District Judge Bernard Friedman seemed receptive to the case, he didn't advance it swiftly. Instead, in August 2012 Friedman suggested Nessel challenge the state's marriage ban. Nessel was frustrated, as Friedman scheduled and held a full hearing, only to decide to conduct a trial. Months passed.
Even so, Nessel stayed hopeful, as a same-sex marriage case, U.S. v. Windsor, advanced through the federal court system. Social change was "like a steamroller," she said, as verdict after verdict affirmed the principle of marriage equality in other states, other courts.
While the Supreme Court's Windsor opinion, issued June 26, 2013, affirmed the standing of a same-sex marriage performed in Ontario, it did not strike down bans in states such as Michigan.
Nessel didn't back off, she reached out: She brought in Carole Stanyar, an expert litigator from Ann Arbor. She called Robert Sedler, a constitutional scholar who had once been her professor at Wayne State University.
"I told him, 'I've run into some sticky constitutional issues and I was your student 20 years ago,' " she recalls. "He said, 'I don't remember you from a hole in the wall but I'll be an adviser and I'll stick with you.' "
So did Kenneth Mogill, an outstanding appellate lawyer, who also signed on to help.
No longer in over her head, Nessel had a team with the firepower to conceivably win, even as social and legal change improved the case's chances.
When the case finally went to trial in 2014, Nessel knew that the state's arguments were hollow, its expert witnesses inept. Friedman dismissed one prospective state witness, a young Ivy League graduate student, with a metaphoric pat on the head, suggesting that one day he might qualify as an expert witness. Ultimately, Friedman's verdict — overturning the ban and humiliating the state — was a professional triumph for Nessel, but still not the end. The state appealed Friedman's ruling.
For Nessel, life outside the courtroom was increasingly challenging, as one case drained her time and resources: The day after the trial ended, her kitchen roof collapsed and her basement flooded.
Her boys were less interested in witnessing history than having their mom around. She heard criticism from people she loved. She was, she realized, sacrificing her own family for the sake of other people's children — for DeBoer and for Rowse and for thousands of other families and would-be families.
Her eye was on the prize, despite the mounting costs, emotionally and financially.
Working pro bono for her clients, she was struggling to make ends meet, funding legal costs out of her personal savings, and relying on her law partner, Christopher Kessel, to keep the doors open.
On Friday, June 26, 2015 — exactly two years after the Windsor decision cleared the air — Dana Nessel and friends could at last celebrate at an all-day event in Ann Arbor.
In Oakland County, moments after the Supreme Court decision was released, Clerk Lisa Brown married two men who had left yoga class and were on their way to Costco when they heard the news. "They had always said they'd marry whenever they could," she explained. DeBoer and Rowse, who had so gracefully allowed the world into their lives for four years, could finally plan a wedding of their own — one that would stand unchallenged by any court or person. They invited Judge Bernard Friedman to perform the ceremony -- and he happily agreed.
Exactly two years after the Windsor decision, DeBoer v. State of Michigan is also part of legal history, a testimony to the determination of a legal team, their clients — and one stubborn, charming, idiosyncratic, highly talkative and determined Dana Nessel, who never seriously considered giving up, even on that day the roof caved in.
Laura Berman is the Detroit News Metro columnist.