Making a Federal Case Out of It

Heroism comes in all shapes and sizes, and often when you least expect it.

David Michener, for instance, did not have heroism in mind when he lost the love of his life, suddenly becoming a single parent overnight to three young children. The experience was traumatic. But it would also land him in the Supreme Court and ultimately in a place of honor in the chronicles of LGBTQ equality.

“I didn’t do it to make history,” David tells Gays With Kids. “I did it to prove it is okay to stand up for your rights.”

In the Beginning

This story begins rather unremarkably, and to 2017 readers, anachronistically.

“We met in an America Online chat room in 1996,” David says, recalling first-contact with his future husband, Bill Ives. “The funny thing is Bill and I talked on our first date about children. I said I wanted to be a father, and Bill was like ‘So do I!’ We knew we could get along.”

And get along they did. Holding a commitment ceremony in 1999, their first child, Anna, showed up (albeit eight weeks prematurely) in 2000, followed by sons Jackson in 2002 (who, unlike his sister, was three weeks late), and Michael in 2012. While the first two were direct adoptions through an agency in Louisiana, Michael perhaps symbolized a precursor to the do-the-right-thing mentality that would later show up in the highest court in the land.

“Bill and I decided we wanted more children,” David explains, “but we didn’t want to go through adoption again. We wanted to start taking kids out of the foster care system. For Michael, it was time — he was almost three.”

At which point, all five fell into the rhythms of family life in Yardley, PA, just north of Philadelphia. Then came Bill’s transfer to Ohio.

The Coming Storm

In February of 2009, Bill moved to Wyoming, outside Cincinnati. The couple decided that David would remain in Yardley, however, while Anna finished 4th grade and Jack completed 2nd. Then, the family would reunite again in Ohio.

Living in the Midwest, they weren't oblivious to their vulnerable legal status as same-sex adoptive parents. So the two obtained every legal document they could think of---from power of attorney to disposition of bodies---to provide protections for their family. They also began to talk about marriage.

“As we became familiar with the politics of the Midwest we decided to marry and protect the family,” recalls David. When Delaware passed same-sex marriage legislation in 2013, it was kismet.

“Our vacation house was in Lewes,” David explains, a town just north of the gay Mecca of Rehoboth Beach. “Since I spent the summers there with the kids, it was a perfect reason to do it, even though Ohio would not recognize it. Our family was able to remain intact if something were to happen to either of us. The kids were protected.”

Sucker Punch

Many a funny wedding story involves one of the parties getting sick, and in July 2013, when Bill teetered down the aisle with a 104°-fever, everyone assumed he was soldiering through a dazzlingly badly-timed flu. What no one knew, several doctors included, was that Bill was in the early stages of a bacterial infection that ravaged his system from the inside out. It wasn’t until a marathon 18-hour surgery that a proper diagnosis finally came to light, but it was too late. Bill Ives passed away August 27.

And if the shock of loosing his husband just 37 days after marrying him wasn’t bad enough, “my cell phone is going off during the entire funeral,” David says. “And it’s a lawyer advising me that my name isn’t going on the death certificate as Bill’s spouse unless we went to court.”

He may have been married in Delaware, but Bill died in Ohio. By 2013, only 12 American states had same-sex marriage laws on the books, whereas many more had laws for just the opposite; Ohio proved particularly vitriolic. In 2004, Governor Bob Taft signed Ohio’s Defense of Marriage Act into law, banning same-sex marriage within the state and prohibiting acknowledgement of any performed outside it. To boot, included was the clause denying “statutory benefits of legal marriage to nonmarital relationships,” such as spousal recognition on death certificates, for example.

The Battle Is Joined

“Ohio treated me like a 2nd-class citizen,” says David simply, and the mild-mannered business analyst had his Incredible Hulk moment. “We got an injunction so that my name could be on the death certificate and Bill would be buried as legally married. We won that.”

But Republican powers in Columbus, in the form of Governor (and later GOP presidential candidate) John Kasich were far from done. A series of suits, countersuits, wins and losses followed, finally culminating in David amalgamating his case with others into what would become the pivotal Supreme Court case of Obergefell v. Hodges. 

Their argument hinged on the Fourteenth Amendment, which mandates all American citizens have equality under the law. For David, this meant that his marriage to Bill should be seen as lawfully licensed, even if performed out-of-state. David was determined his husband be buried not only with dignity, but also as a married man.

“It was living hell,” he recounted of the legal proceedings. Nonetheless, on June 26, 2015, the Supreme Court passed a 5 – 4 vote in favor of David and his co-plaintiffs, requiring all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other jurisdictions. Along with United States v. Windsor, the case guaranteed marriage equality in the United States.

David was in Disney World with his family when the verdict came down.

“We had been so stressed we needed to get away,” he says. “I was out having fun with the kids, which I would have preferred anyway.”

Case Closed

Now residing in Lewes, David, 55, stresses that however he may be perceived in the annals of LGBTQ history, he is a father first. But to his kids, he's both. 

“Being a part of a Supreme Court case was very interesting,” says 17-year-old Anna, who was in court along with her father. “I learned a lot about the issues facing the country as well as how our government works. Going from a tourist looking at the Supreme Court to being the one walking out those doors was an experience unlike any other.”

What better civics lesson could you get than to help transform American society, and LGBTQ rights, for the better?

For More on LGBTQ Family Advocacy Read:

Dads that Became Leaders in the Fight for Marriage Equality

Juan and Tom, Heroes in the Fight for Marriage Equality

How the Gays Stole Easter: Remembering the 2006 White House Easter Egg Roll

Posted by David Perry

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