A UT Law alumna, two UT vet med professors, and their case for legalized same-sex marriage
By Roger Hagy, Jr. Photography by Patrick Murphy-Racey. Originally published in Tennessee Law, fall 2014.
It’s a “meet-cute” moment straight out of a romantic comedy.
“This might seem cheesy, but it was meant to be,” says Val Tanco of the serendipitous moment she met Sophy Jesty. “I literally just ran into her in an elevator. I thought the elevator was going one way, but it turns out it was going the other. I had to very embarrassingly get off the elevator while she looked at me like, ‘What’s wrong with you?’”
Tanco and Jesty went out for drinks later that day, began dating a few months later, and eventually got married in New York City.
“We got married in a Brooklyn courthouse on September…” Tanco pauses to look sideways at Jesty. “Ninth?”
Jesty nods, smiling wryly. “That is correct.”
“September 9, 2011,” Tanco says with a proud smile, sitting up straight. “Three years ago.”
A lot can happen in three years. In 2013, the US Supreme Court overturned the federal portion (Section 3) of the Defense of Marriage Act in United States v. Windsor, holding that under federal law, recognizing only heterosexual couples’ marriages is unconstitutional under the Fifth Amendment, leading to federal tax and other benefits for same-sex couples. Quickly, a flood of lawsuits was filed by advocacy groups and same-sex couples to challenge individual states’ bans on same-sex marriage.
Among those couples are Tanco and Jesty, who have since moved to Tennessee (which currently doesn’t recognize same-sex marriage) to serve as veterinary medicine professors at UT. “We sort of knew that these types of cases were going to happen,” says Jesty, “but it didn’t really occur to us that we might take part in it—and we certainly didn’t go out looking to be plaintiffs.”
Instead, they became involved in the matter thanks to the efforts of their friend, Regina Lambert (’01), a UT Law alumna and frequent adjunct instructor.
A Friend and Advocate
When the Windsor decision was announced in 2013, Lambert had just celebrated her twenty-fifth anniversary with her partner, Jackie Stanfill (UT Martin, ’80), and was celebrating her fiftieth birthday in France. Once back in the States, they married in Vermont.
Then Lambert was ready to get back to work. Although a corporate lawyer by day, Lambert got involved with Nashville attorney Abby Rubenfeld and the National Center for Lesbian Rights and decided to file a suit in Tennessee. The goal was to include attorneys and plaintiffs from across the state. Soon, Bill Harbison and attorneys from his Nashville firm, Sherrod & Roe, became involved. Maureen Holland, who practices in Memphis, also joined the team.
“When we started to put this legal team together, we had to decide whether we were going to have a full challenge to the state ban or start off with the ‘baby step’ of recognizing marriages from other states,” says Lambert. “Since we were going to be one of the first southern states to file, we thought ‘recognition only’ might be a better start. And we wanted plaintiffs that would really be able to reflect the mobile society that we live in in the United States.”
For plaintiffs from Knoxville, Lambert quickly thought of her friends, Tanco and Jesty, and approached them about participating. At first, though, the couple was wary of wading into what would obviously be a very public case. Ultimately, they saw the case as a way to help other couples. They said yes. “We’ve never regretted that decision because we’re lucky enough to have friends and family who support us and a workplace that already knew we were together,” Jesty says. “So it’s not like we had to worry about losing jobs, losing family, losing friends by being as ‘out’ as we now are. That really gave us a luxury of saying yes, whereas I think a lot of people are in more precarious situations than us.”
Decision made, Lambert invited the couple over to her house to celebrate. However, Tanco and Jesty brought with them a slight twist. “I poured a glass of wine to toast,” Lambert says, “and that’s when Val said, ‘Well, I really can’t drink…I’m pregnant.’”
An Addition to the Family
Lambert says the pregnancy gave an added immediacy to their situation. One of the other couples in the Tennessee filing—two husbands in Memphis—already had children, but the complications surrounding giving birth to a new child in the middle of the upcoming legal battle presented new challenges—namely, whether Jesty could be legally recognized as one of the parents. The legal team acted quickly, filing a preliminary injunction for the state to recognize Tanco and Jesty’s marriage for the time being, which would allow them to purchase health insurance together and put both of their names on the birth certificate. A federal judge granted the request.
Soon after, Tanco gave birth to Emilia, the first baby born in Tennessee to have a woman listed as “father” on her birth certificate. Lambert immediately became “one of Emilia’s biggest fans,” Tanco says. “Regina was the first person to meet Emilia outside the family. She was there the day after Emilia was born, and she’s the only one of our friends who got to see her in the hospital. I just can’t imagine—even once this case is done—I can’t imagine not having Regina in our lives.”
But when will the case be done? The US Supreme Court decided in October to deny cert in seven marriage cases before them, a decision that has allowed same-sex marriages to proceed in several states while other federal appellate courts continue to make decisions. However, the Sixth Circuit US Court of Appeals—which heard in August the Tennessee cases, along with cases from Kentucky, Michigan, and Ohio—decided in early November to uphold the four states’ right to ban same-sex marriage. Judge Jeffrey Sutton wrote the two-to-one majority opinion, saying legalized same-sex marriage in the United States is “inevitable,” but the decision should be made through “the less expedient, but usually reliable, work of the state democratic processes.”
“But during that period of time, people won’t have rights and protections for five, ten, twenty years until some of the states legalize gay marriage,” Jesty argues.
In her dissent, Judge Martha Craig Daughtrey wrote that the court’s decision portrayed the families as “mere abstractions.” During arguments in August, she spoke along the same lines, citing the long road for women’s rights in America.
“Judge Daughtrey pointed out that it took seventy-eight years for women to fight for the right to vote,” says Lambert. “Even then, they couldn’t vote in federal elections; they had to get a constitutional amendment. Sometimes the democratic process isn’t effective, especially when you’re talking about a constitutional right.”
Brian Krumm, a UT associate professor of business law and close friend to Lambert, agrees. “Equal protection and full faith and credit are the two things that all people should be able to rely on,” Krumm says. “We can’t selectively apply those concepts…Why go the long way around something when we can resolve it more expeditiously?”
Equal protection and full faith and credit are the two things that all people should be able to rely on. We can’t selectively apply those concepts…Why go the long way around something when we can resolve it more expeditiously?
Now, the question of legalized same-sex marriage will return to the Supreme Court in DC—although there’s still no guarantee the justices will grant cert and hear a case.
For now, Lambert and her clients—and all the families involved—must wait.
A Question of Rights
“You can see where the different sides are trying to frame the question differently,” Lambert says. “Opponents would say that same-sex marriage is a new right that we’re talking about. And the equality folks say, ‘No, this is marriage—it’s marriage that would now be accessible to a group that had, in the past, been denied the right, an existing right.”
“One argument is that that’s what the Constitution is for: to protect minorities that don’t have power in the legislative process,” says Wendy Bach, a UT associate professor of law. “That’s what judges are supposed to do.”
“I think things, decision by decision, will move along the same way as they did for African Americans,” Krumm says. “Over time, all the decisions will back up the fact that we’re all people, we all deserve the same rights, privileges, and responsibilities. It may take a year, it may take five years, it may take a generation before everyone looks back and says, ‘I can’t believe that once upon a time in America, we treated people that way.’”
Meanwhile, the states opposing same-sex marriage are employing a variety of arguments, including Kentucky’s “perpetuation of the human race” argument and Tennessee’s argument that the state’s intention is to ensure that children (especially those born accidentally) are born into a stable environment, defined by the state as a heterosexual marriage. “As one of the attorneys pointed out for the plaintiffs, opposite-sex couples have children all the time and there’s no test they take, no certification,” Lambert says. “They can screw up horribly, they can do wonderful jobs…The only difference is that same-sex couples surely have to want to have a child. There are no accidental pregnancies; it’s a very conscious decision.” The lack of commonality among the states’ arguments is telling, she says. “I think that points to the fact that if there was this really strong legal justification against gay marriage, probably everyone defending state bans would latch onto it.”
If there was this really strong legal justification against gay marriage, probably everyone defending state bans would latch onto it.
Bach says she encountered an interesting alternative argument suggested by a student at a UT panel: If states abolished marriage, would divorce still be possible? “I think his point was to get the states entirely out of the institution of marriage,” Bach says, leaving the concept of marriage a purely personal one. “As a practical matter, it’s an impossibility, because marriage is deeply intertwined with legal and regulatory regimes. But it was an interesting thought, that instead of privileging certain family forms, we should instead support everyone’s choices.
“The harder question,” Bach says, “is what’s going to happen in the next year. It’s really going to come down to what the Supreme Court says Windsor means.”
‘The Best Year’
For now, Lambert and her clients are unflinchingly optimistic.
“It’s inevitable,” Lambert says of legalized same-sex marriage, astonished at how far gay rights have come in her lifetime—and the new outlook young gay people have. “It’s a different approach to life when they meet and date people because they see them as potential spouses, a person they’ll potentially parent with, and it wasn’t that way for me. I never saw a case like Windsor happening in my lifetime.”
Tanco and Jesty are excited for the changed world that their daughter will experience. “I hope Emilia will grow up in a place where her family isn’t different than anyone else’s, where, at least legally, she doesn’t have to worry about anything,” Tanco says. “I think the key to all of this is that we’re not asking for anything that would take away something from another person. It’ll just bring us all to the same place and the same level in the eyes of the law. No one else except the people that are being kept from their rights are really going to have anything to lose. What does a straight couple have to lose if we’re married? Absolutely nothing.”
I think the key to all of this is that we’re not asking for anything that would take away something from another person. It’ll just bring us all to the same place and the same level in the eyes of the law. No one else except the people that are being kept from their rights are really going to have anything to lose. What does a straight couple have to lose if we’re married? Absolutely nothing.
Lambert, Tanco, and Jesty readily recognize that not everyone agrees with them ideologically.
“I think everyone has the right to believe whatever they want to believe,” Lambert says. “I would be one of the first lawyers to sign up to defend any church that didn’t want to perform a same-sex marriage. That’s definitely a right that I am in full agreement with. But I don’t think personal or religious beliefs should have any justification for blocking gay marriage under the law.”
The three women have enjoyed support from the UT and Knoxville communities. Lambert says her UT Law students have offered to help with the case in any way they can, and Tanco and Jesty have met many people who thank them for leading the way for change through the case.
“Our impression has been that even down here in the South, when people get to know you, they recognize that we’re hard-working, we love each other, our relationship is really remarkable and solid,” says Jesty. “It makes it hard for them to dislike us on a personal level, even if they might not agree with what we’re asking for legally.”
Above all else, the women appreciate the case for how much it has enhanced their friendship.
“One of the most precious parts of this whole thing has been our relationship with Regina,” Jesty says. “We have such a special, unique bond because we’ve been going through this process together. None of the three of us will ever forget this.”
“It’s been such a privilege, and it’s just been the best year,” Lambert says.
“Everything happened: the big birthday, the big anniversary, the wedding, this case…”
She lets her sentence drift away, lost in wistful thought. She smiles.
“Yeah, it’s been a nice ride.”