Governor Mark Dayton appointed Justice David Lillehaug to the Minnesota Supreme Court nearly two years ago. About a month later, on May 14, 2013, Dayton signed the bill that made Minnesota the 12th state to legalize same-sex marriage. Since the law went into effect on August 1, 2013, Lillehaug has officiated five same-gender ceremonies. In this essay, Lillehaug recounts exclusively for Mpls.St.Paul Magazine what two of those experiences meant to him.
When I was growing up in Sioux Falls, South Dakota, in the 1960s, I could not have predicted that, someday, I would officiate at same-gender weddings. Homosexuality just wasn’t discussed in my student circles. If there was any mention of men loving men or women loving women, it usually came out of the mouth of some wise guy, and what was said was mocking and unkind. As far as I knew, none of my classmates had come out—at least not to a straight Lutheran fellow like me. And, had I ever bothered to consider the topic thoughtfully, I probably would have said that same-gender marriage could never happen.
In 2012, I returned to Sioux Falls for my 40th class reunion. It became obvious that there was much that had not been disclosed during school days. I met a few classmates, now graying men and women, who had come out. But others were missing. From a table of class pictures I picked up and perused a list of deceased classmates. Most were male. Some had died in car crashes, some from cancer, and one from drowning. But, reading between the lines of vague obituaries, it was clear that some had left behind same-gender partners.
A year later, Governor Mark Dayton signed a bill to make same-gender marriage legal in Minnesota. Soon after, I took the oath and became a justice on the Minnesota Supreme Court. My new status as a justice gave me the right to officiate at marriages. As of August 1, 2013, that included same-gender marriages.
Despite my oblivious upbringing, as an adult I had good reason to consider the issue of marriage equality. The topic first hit home for me in 1996 on the day my daughter, Kara, went to preschool. Like many nervous first-time parents, my wife and I were eager to meet the parents of the other children.
One such child was Grant. As the grownups seated themselves in child-size chairs, I met Grant’s mom, Jacquie. I looked around the room to introduce myself to Jacquie’s husband. Then Carol walked over, and Jacquie introduced her as Grant’s other mom.
As we got to know Jacquie and Carol, we realized that Grant had wonderful parents. And we asked ourselves: If our daughter’s parents were married, then why couldn’t Grant’s parents be married? Then I started considering the legal question: How can there be equal protection under the law if my daughter’s parents can be married but Grant’s parents can’t?
I decided to invest some time and thought on that legal issue. As a partner at a Minneapolis law firm, I had a great deal of freedom to do pro bono work. So in 2004, I started and supervised a major research project about the advantages and disadvantages of children of parents who were married versus children of parents who weren’t married. The research was conducted by a bright law clerk, Sara Reisdorf. Remember Sara’s name because you’ll read more about her shortly.
Sara’s research showed that, in a variety of ways, children of married parents enjoyed many direct and indirect legal advantages over children of non-married parents. Her analysis convinced me that there was a strong argument that children of same-gender parents were being denied equal protection. Gingerly, I broached to Carol and Jacquie the idea that their family could be the lead plaintiffs in a constitutional challenge to Minnesota’s marriage law. They were interested, but decided to wait until Grant was old enough to choose whether he wanted to be a legal pioneer. So we put the project on the back burner.
A couple of years later, I was approached by three couples who wanted to sue for the right to marry. Again, I was intrigued. But leaders in the gay and lesbian legal community advised that a lawsuit would undermine their efforts to achieve equality through the legislative process. Not long after in 2011, the idea of a lawsuit was overtaken completely by the much larger political battle, focusing on a constitutional amendment that would ban same-gender marriage.
The amendment, titled Recognition of Marriage Solely Between One Man and One Woman, failed in November 2012, and the legislature legalized same-gender marriage effective August 1, 2013. Within days after being sworn in as a member of the Minnesota Supreme Court, I was asked to officiate at the wedding of Hanan Rosenstein, 76, and Rich Alberta, 72. Their legal union would be the first over which I would preside. In 1967, Hanan had just returned to Minnesota from a stint in the air force medical corps. He decided to take some courses at the University of Minnesota. One day he chatted up a Catholic schoolteacher named Rich Alberta who was taking a psychology course in the medical building. Rich was a self-described “farm boy” from Surrey, North Dakota.
Hanan and Rich hit it off and, eventually, Hanan invited Rich home to lunch. When Rich saw Hanan’s last name on the door—not knowing that Hanan was Jewish—he remarked, “Oh, that’s a nice German name.” Hanan, who has a Russian Jewish background, graciously overlooked this faux pas: “Why, thank you,” he responded. Not long after, Rich moved in with Hanan.
A homosexual relationship was a dangerous thing in 1967. For many years, Rich and Hanan handled their partnership with great discretion, concealing their relationship from everyone who didn’t need to know. Even their parents didn’t know for many years.
Hanan was a prominent physician, and his Jewish mother always referred to him as “my son, the doctor.” Rich became a forensic psychologist, prompting his Italian-speaking father to ask, “What the hell [is] that?” It was a professional imperative that colleagues and patients remain in the dark about Hanan and Rich’s partnership. For years, Rich couldn’t pick up the telephone in the evening because anyone calling Hanan might wonder who the strange male voice was answering Hanan’s phone so late at night.
When the proposed amendment to ban same-gender marriage was put on the 2012 Minnesota ballot, Rich and Hanan were highly pessimistic. Having long experienced discrimination, they were certain that the amendment would pass overwhelmingly. When they woke up the morning after Election Day and learned that it had failed, marriage “arrived on our radar screen.” When the U.S. Supreme Court overturned the so-called Defense of Marriage Act, they resolved to legalize their partnership.
I agreed to marry them. There was rich irony in the idea that a Minnesota Supreme Court Justice would officiate. More than 40 years before, the court had declined to recognize same-gender marriage. The losing attorney was one of Hanan and Rich’s friends.
On a shelf in my chambers, I have the papers from that 1971 lawsuit. Usually legal briefs are sterile and technical. But, in this case, the brief submitted by the Hennepin County Attorney (who was later appointed to the court) opposing the lawsuit was personal and scathing: “I most sincerely believe that when the day arrives when we attempt to undermine the law of our Creator in the most fundamental area of the relationship of man and woman as man and wife we will indeed be in extreme and irresolvable difficulty.”
On appeal, a unanimous Minnesota Supreme Court made short work of the 1971 lawsuit. In a decision citing the Book of Genesis, the court held that the idea of same-gender marriage had no constitutional basis. The U.S. Supreme Court dismissed the appeal in a one-sentence order on the ground that the question wasn’t “substantial.”
So the cloud of history hung over us as we met in Uptown over Dunn Brothers coffee. Hanan and Rich were businesslike. Their relationship had prevailed against the winds of discrimination. Their decision to marry was not about romance, they emphasized; it was about entering into a civil contract. They wanted to wed for the tax, Social Security, and estate-planning benefits that the legal contract would allow.
Knowing their history, I wasn’t surprised that it took a little while for Rich and Hanan to loosen up with a supreme court justice. Still, I was not entirely persuaded that their decision to marry was mostly about money. Hanan was wearing a ring, I noticed. They explained that they had shopped at Tiffany to celebrate their 35th anniversary as a couple. In the years after, Rich’s fingers outgrew his ring. They decided that Rich’s ring would be resized and both rings would be polished in anticipation of an exchange at the wedding ceremony.
On the big day, as Hanan and Rich arrived at the Minnesota Judicial Center with family and friends in tow, it quickly became apparent that the ceremony was about much more than a civil contract. In a solemn courtroom, eyes began to fill with tears when I observed, “These are real people who care about each other. Decades before the law changed, they were partners for life.”
As the two joined hands and spoke their vows to each other, I could feel the deep affection and, yes, an electric tingle in the courtroom. They exchanged freshly polished rings. Applause rang out when I proclaimed for the first time: “So therefore, by the power vested in me by the laws of the state of Minnesota, and by virtue of the newly enacted statute, I hereby declare Hanan and Richard to be legally married.”
As the newlyweds readied to leave the courthouse, a uniformed security guard approached them. Based on years of hiding their relationship, Rich’s first thought was to run. But the guard, who had been watching the ceremony on a security monitor, took them aside and whispered, “That was the most beautiful thing I have ever seen.” In that moment, it was clear to them that times had changed.
The realization hit Hanan and Rich again when they arrived at the Nicollet Island Inn for their wedding reception. A sign was prominently posted on the door: “Alberta-Rosenstein Wedding Reception.” Rich’s first thought was that they couldn’t display that sign in public. Then he relaxed.
More than a year later, Hanan reflected on the wedding day. “We went into it for the legality of it. Turns out that we were surprised at how meaningful and emotional it was. It was so much more than we expected.”
You will recall that earlier I mentioned a law clerk named Sara Reisdorf. She eventually joined my law firm and was made partner. Sara treasures her season tickets to the Minnesota Lynx. In June 2011, after a Lynx game, Sara was having a drink with friends in Huberts Bar. Amy Kilian, an MSP Airport detective who supervised security at Lynx games, walked through the bar after she was finished working. One of Sara’s group urged Amy to sit and have a beer. Amy agreed and took the only open chair—directly across from Sara. “Location forced us to talk to one another,” Sara recounted.
The conversation continued—and broadened and deepened—over the next two years. Eventually, the couple decided that Amy would sell her Waconia home and move into Sara’s St. Louis Park bungalow. Amy didn’t doubt their decision, but selling the house she had lived in for 10 years made her a little jittery.
On Valentine’s Day 2013, the couple, who had been working long hours and not spending enough time together, decided to celebrate the holiday quietly at Amy’s home. After they made dinner, Sara handed Amy a card, with a note explaining that Sara understood Amy’s mixed feelings about moving. On the back of the card were the words, “Will you marry me?” Amy, stunned, couldn’t speak for a moment. Finally, realizing that Sara was awaiting her answer, she blurted, “Oh my God, yes!”
At the moment of their engagement, same-gender marriage wasn’t yet legal in this state. The couple discussed getting married in Dubuque, Iowa, where Sara grew up and where the law had changed in 2009. But their plans quickly shifted when marriage equality reached Minnesota.
As they considered wedding venues, their thoughts turned to The Grand Hotel in downtown Minneapolis, only a block from Sara’s law firm. Sara worked out regularly in the building’s fitness center, and she knew and liked the hotel staff. The Grand would work well for a relatively small wedding of 95 guests, some from out of town.
Sara remembered our legal work together, and invited me to officiate. We met in The Grand’s lobby to discuss their plans for the ceremony. They revealed that they would put a bottle of wine, notes to each other, and a copy of their wedding vows in a time capsule that would be opened on their fifth anniversary.
The ceremony, in one of The Grand’s ballrooms, was intimate and sophisticated. The brides were both stunning in their white gowns. When the moment came to close the time capsule, detective Kilian sealed the box with evidence tape, and I “authenticated” the seal with my signature.
Then the couple flew to the Caribbean island of St. Martin for a honeymoon. It was the first time in three years they had turned off their cell phones. But Amy’s hard-charging cop colleagues and Sara’s busy clients readily accepted the idea that they should have plenty of beach time during their honeymoon.
Amy and Sara Kilian now live together in what is “their” house in St. Louis Park. They’ve been renovating. They’ve been guests at three other same-gender weddings in Minnesota. And kids? That’s on the “list to discuss.” I am confident that, like the bottle of wine in the time capsule, their relationship will continue to age nicely.
Besides the Hanan-Rich and Sara-Amy nuptials, I officiated at two other same-gender weddings before I married a man and a woman.
I’ve been fortunate to be married for 32 years. I became convinced years ago that no one should be denied the joy of that relationship, whether on the basis of gender or otherwise. But my conviction was more intellectual than emotional. Only when I officiated at same-gender weddings did I fully appreciate the profound joy and heartfelt emotions experienced by couples long denied.
The views in this essay are solely those of David Lillehaug and do not represent the official position of the Minnesota Supreme Court or any other justice.