Fighter for equal rights

It was 1977 when he first felt the sting of injustice. Douglas Hallward-Driemeier’s elementary school was being forced by a court order to integrate with the neighboring black school.

{mosads}Little did the St. Louis, Mo., native know that, more than 30 years later, he would be at the center of what some are calling the civil rights fight of the 21st century, arguing on behalf of same-sex couples for marriage equality.

A Harvard Law graduate who received his undergraduate degree from DePauw University in Indiana and was a Rhodes Scholar at the University of Oxford, Hallward-Driemeier has argued 16 cases before the Supreme Court.

His first was a False Claims Act case in which the justices had to decide what the statute of limitations was for retaliation claims made by whistleblowers. In addition to having a terrible position, which he says he was rightly criticized for, Hallward-Driemeier remembers being too nervous to even take a sip of water.

“They have a glass of water that sits next to the podium in case your mouth gets dry, and my mouth was getting dry because I was very nervous,” he said. “And as I reached for it, I realized that my hand was shaking so that had I picked up the glass of water I would have dumped the water all over all my papers.”

Instead, he said he grabbed the podium and held on for dear life.

“We got slaughtered,” he said.

For the April arguments in Obergefell v. Hodges, Hallward-Driemeier was careful not to let on that he was nervous.

“I would say I felt additional pressure,” he said.

The case, which is expected to be decided soon, stems from the 6th U.S. Circuit Court of Appeals’s decision to uphold bans on gay marriage in Ohio, Tennessee, Michigan and Kentucky. The justices have been asked to answer two questions: whether states are required to license a marriage between two people of the same sex and whether states have to recognize marriage licenses for same-sex couples from other states under the 14th Amendment.

In an unusually lengthy two and a half hours of arguments, Hallward-Driemeier had 30 minutes to prove the second question.

His opening argument? The petitioners are already married.

“They have established those enduring relationships and they have a liberty interest that is of fundamental importance to these couples and their children,” he told the justices. “A state should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so.”

More than half of Americans, according to a recent poll, are expecting a sweeping ruling that could legalize same-sex marriage in all 50 states. Like most lawyers, Hallward-Driemeier is hesitant to predict how the case will go.  

With tough questions asked on both sides, he said it’s hazardous to make predictions.

A difficult question for Hallward-Driemeier came from Justice Antonin Scalia, a conservative member of the bench, who asked if a marriage could be considered a protected liberty if it’s unlawful under the receiving state’s laws.

“Well, let’s say someone gets married in a country that permits polygamy,” Scalia said. “Does a state have to acknowledge that marriage?”

There were notable exchanges too, ones that, as Hallward-Driemeier put it, proved “there really is no there there” when it comes to the arguments of his opposing counsel.

After John Bursch, one of the states’ attorneys, argued that the purpose of marriage is to raise children and provide them with a stable environment, Justice Anthony Kennedy said that argument assumes same-sex couples could not have a more noble purpose to get married.

“Same-sex couples say, ‘Of course we understand the nobility and the sacredness of the marriage,’ ” he said. “ ‘We know we can’t procreate, but we want the other attributes of it in order to show that we too have a dignity that can be fulfilled.’ ”

The justices, Hallward-Driemeier said, were reacting to the suggestion that childrearing is all that marriage is about.

“That’s not honest to our own experiences of marriage,” he said. “It’s so much more than that.”

Hallward-Driemeier’s ability to connect his arguments to the couples he has been hired to represent is what advocates said makes him perfect for the job.

After the circuit court issued its ruling on Nov. 6, Chris Stoll, senior staff attorney for the National Center for Lesbian Rights, said he had to file a petition by
Nov. 14 in order to have the appeal heard by the Supreme Court this term.

“We knew immediately we needed a lot of help from an attorney and firm that has resources and deep experience with the court,” he said. “Doug’s name came to mind immediately.”

Stoll and Hallward-Driemeier were friends at DePauw University and classmates at Harvard Law School.

“We were two of the few progressive people at what was a rather conservative Midwestern college,” Stoll said.

Hallward-Driemeier thanks his parents for that.

His father, an educator and later an administrator at the University of Missouri at St. Louis, and his mother, a nurse, stressed the importance of treating people fairly.

Stoll said Hallward-Driemeier’s performance was the best he’s seen a lawyer deliver to any court. 

“He was both forceful and thoughtful at the same time,” he said. “He answered the justices’ questions with clarity, and I really felt that all of the justices were connecting with him and understanding the points he was making, whether or not they agreed with him.”

If the court decides only that states must recognize marriages performed in other states, it would be a win for Hallward-Driemeier.

“But ultimately to get there, the court would have to first say on the first question that these couples don’t have a constitutional right to marry,” he said.

States would have to observe, but not respect, such marriages, Hallward-Driemeier said. It’s a ruling, he explained, that could invite states to think about what other kinds of rights they could give only to heterosexual couples.

“It would not be the vindication of equal rights that we’re asking for and we think we’re constitutionally entitled to.”