Same-sex marriage: behind the scenes at Ropes &?Gray

By Brandon Gee
The Daily Record Newswire
BOSTON — The most talked-about legal decision of the year is also a powerful reminder of this timeless truth of the legal industry: It’s a relationship business.

Once the Cincinnati-based 6th U.S. Circuit Court of Appeals upheld Tennessee’s refusal to recognize the out-of-state marriages of three same-sex couples who moved to the Volunteer State to pursue their livelihoods and raise their children, the plaintiffs’ local and National Center for Lesbian Rights lawyers needed help.

They of course planned to file a petition for a writ of certiorari with the Supreme Court, but felt their team lacked an experienced high-court practitioner. That’s when the national center’s Christopher F. Stoll picked up the phone and called Douglas Hallward-Driemeier, a fellow classmate at DePauw University and Harvard Law School.

As the head of Ropes & Gray’s Washington-based appellate and Supreme Court practice, Hallward-Driemeier had just the chops the Tennessee plaintiffs were looking for.

“They reached out to Doug and said, ‘We have a fantastic case. We know this area [of the law], and you know how to handle Supreme Court litigation. This would be a great partnership and we would love to have you guys join our team,’” says Ropes & Gray’s C. Thomas Brown, a senior associate in Boston. “Doug’s experience also could bring to the table, due to our size and numbers, a lot of high-quality material quickly.”

Over the course of what Brown calls a “very intense” week, Hallward-Driemeier worked with Ropes colleagues and the Tennessee plaintiffs’ existing lawyers to pull together the cert petition. Once it was granted, much of the work shifted to Ropes’ Boston headquarters.

“I was privileged to get a call from Doug asking me to join him in helping him put a team together, pull together a brief and ultimately prepare for oral arguments,” Brown says.

Brown says many other Ropes lawyers were “eager” to join the team. Five other associates ultimately were chosen to help prepare the brief, based on “their commitment to or interest in this issue” or their work on similar cases in the past.

“Everybody had to balance this against a bunch of other work demands, but that’s what we do all the time and it really showed through,” Brown says. “When they ask you to help and if you have time, the answer is, ‘Of course. What a great opportunity. Thank you so much.’ … When Ropes & Gray took this case on, it was apparent because of the nature of the issue and how it had come about that, whatever the result, it was going to be a monumentally important case.”

The team had six weeks to prepare the initial brief, and another four to reply to the state of Tennessee’s.

“Our team spent extraordinary amounts of time researching these issues, drafting briefs, working on questions that would come up and, of course, we would be in constant contact [with co-counsel],” Brown says. “There’s an extreme amount of preparation that goes into making sure you’re fully prepared. We had a sort of virtual war room, parceled out research assignments, pulled together an outline, worked through that [and] periodically sent it up to Doug to critique and revise.

Brown says he “was guiding the team and brief preparation the way a senior associate does. … Everyone was committed to this case and to making sure that everything we provided was of the highest quality.”

“The firm made a real commitment to this case as it always has on these issues. … It felt like and it was a great responsibility, and I think we all carried our part in it well,” he says.

Brown stresses the team-effort nature of the work, not only within Ropes and in conjunction with the Tennessee and National Center for Lesbian Rights lawyers, but also with the lawyers working on three other 6th Circuit cases that had been consolidated for argument at the Supreme Court.

The Tennessee case, Tanco v. Haslam, primarily concerned the issue of whether states that didn’t allow same-sex marriages should have to recognize those performed in states where it was legal.

“All of the briefs carried forward the same basic points about the substantive right to marry and the duty of states to acknowledge other states’ marriages,” Brown says. “Our case had some additional arguments on federalism: How is it that one state can deny a marriage fully recognized in another? There were all kinds of talents and experience brought together in this, and it really made for
what was really a quite remarkable collaborative experience."

The harmonizing carried over to oral arguments when Mary L. Bonauto, civil rights project director at Boston-based Gay & Lesbian Advocates & Defenders, argued same-sex couples had an affirmative right to marry, while Hallward-Driemeier got the nod for arguing that states should be required to recognize out-of-state same-sex marriages.

“Not only did the arguments fit together beautifully, but the results speak for themselves,” Brown says. “It’s a great triumph for couples nationwide who will now be able to enjoy the protections of marriage — not only the couples themselves, but also their families and children in particular.”

Now that the dust has settled, Brown, 38, and in his ninth year at Ropes, considers the case “one of the great thrills” of his career.
“Before this I had never litigated to great detail a civil rights-type of case before,” he says. “To have your first one be of this magnitude and importance is really quite something. … There’s a little bit of a get-back-to-reality feeling that you have when a case like that ends, and I’m sure a lot of other people would describe it that way — even the guy who had the most experience of all of us: Doug. I love the work I do, but I do securities and corporate governance disputes. There’s not a lot of Supreme Court traffic there. To go on a case of this moment and in an area that wasn’t an area I’ve focused on or committed my career to was a great thrill and opportunity.”

Here is a full list of the lawyers who represented the plaintiffs in Tanco v. Haslam: Abby R. Rubenfeld of Rubenfeld Law Offices in Nashville; William L. Harbison, Phillip F. Cramer, J. Scott Hickman and John L. Farringer of Sherrard & Roe in Nashville; Maureen T. Holland of Holland & Associates in Memphis; Regina M. Lambert of Knoxville, Tennessee; Stoll, Shannon P. Minter, David C. Codell, Amy Whelan and Asaf Orr of the National Center for Lesbian Rights in San Francisco; and Hallward-Driemeier, Brown, Samira A. Omerovic, Paul S. Kellogg, Emerson A. Siegle, John T. Dey and Joshua E. Goldstein of Ropes & Gray’s Boston, New York and Washington, D.C., offices.


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