On New Year’s Eve 2013, Lawrence attorney David Brown quietly filed a case called Nelson v. Kansas Department of Revenue.
Though the case represents two married same-sex couples and tackles the issue of equality, it never raises the question of whether Kansas’ ban on gay marriage is constitutional.
That news came on its own Oct. 6, when the U.S. Supreme Court surprised just about everybody with a quietly monumental decision to let stand lower court rulings that overturned gay marriage bans in five states.
Two days later, another seismic development: A district court judge in Johnson County ordered that marriage licenses be issued to same-sex couples, and three days later a lesbian couple were wed in Olathe.
Hours later, Kansas Attorney General Derek Schmidt asked the state to nullify the judge’s order, and the Kansas Supreme Court issued a temporary halt to issuing same-sex marriage licenses. The ACLU then filed a challenge to the Kansas ban in federal court.
None of it affected Brown’s case, whose outcome could have national ramifications on a different level.
Of all the challenges to state gay-marriage bans currently on file, his is the only one pending in state court, not federal court. Gay rights advocates around the country are watching to see how the case, which centers on marital status for state tax filing purposes, plays out.
Because even if federal courts and the Supreme Court continue moving toward recognition of same-sex marriage, state courts could become critical battlegrounds if state legislatures and agencies attempt to enact laws and regulations limiting equality for same-sex couples.
In some ways, the coming showdown in Topeka is the battle that Brown, 62, has been preparing for his whole life. But despite his imposing appearance — 6-foot frame, cowboy boots and a waist-long braided ponytail — Brown is no firebrand spoiling for a fight. He is an intensely private person who prefers successful outcomes for his clients over headline-grabbing crusades with a high likelihood of failure.
But by taking the equality fight to the state of Kansas, Brown may have penciled his name on history’s dance card.
Taking taxes to task
The plaintiffs in the Nelson case are Michael Nelson and Charles Dedmon of Alma and Roberta and Julie Woodrick of Lawrence (Woodrick is a combination of Roberta’s maiden name, Wood, and Julie’s, Warwick.)
Both couples were married in California, the Woodricks in 2011, Nelson and Dedmon in 2013, and both have been together for 25 years.
They are all longtime clients of Brown’s because in Kansas, gay couples have to hire a lawyer to draw up legal documents to secure basic spousal rights that are automatic for heterosexual couples. For two decades, the bread-and-butter of Brown’s work has been to help gay couples navigate the law when it comes to name changes, inheritances, hospital visitation rights, even pet custody.
At the same time Brown and his clients were planning their strategy, Duke University law student Haniya Mir was researching changes to tax laws in light of the Supreme Court decision striking down the Defense of Marriage Act.
“After the IRS came out and said they recognized same-sex married tax filers, a lot of states that don’t recognize same-sex marriage rushed to put out these new rules that said same-sex couples would still need to file state tax returns as single individuals,” Mir said. “So now you have this conflict between state law and federal law. And the majority of state agencies didn’t follow their own states’ rule-making requirements in issuing these new requirements.”
Mir started writing an article exploring those two conflicts.
“As a law student, you never think anything you are suggesting is actually going to be filed,” she said. “And then it turned out that, right around the time I was writing this, there’s an attorney in Kansas that has the same ideas and is actually filing legal challenges based on those ideas.”
Brown’s suit claims Kansas is in violation of state laws based on three arguments:
First, Kansas law says the state is supposed to use federal definitions of marriage for state income tax purposes. The IRS says legally married same-sex couples can file as married, so not using the IRS definition is a violation of Kansas law.
Second, in issuing Notice 13-18, which says same-sex married couples have to file as single taxpayers, the Department of Revenue did not comply with Kansas law about how rules and regulations can be adopted. The state claims Notice 13-18 is an advising document, not a rule or regulation. Brown says it is a rule or regulation because if taxpayers do not follow it they are subject to penalty of law.
Third, Brown argues, the Department of Revenue has created separate classes of married taxpayers, a denial of his clients’ rights to equal protection and due process. “My clients have to fill out an extra worksheet and incur extra accounting expenses and other married people don’t.”
Nelson is the only case in the country arguing for same-sex marriage on tax grounds. Mir thinks that approach is effective because it depoliticizes the issue and puts it in terms anyone can relate to.
“When I fill out my federal tax return, Turbo Tax will automatically populate my state income tax return with information I provide for the federal return. The Kansas law forces married same-sex couples to recalculate. That creates a burden. Nobody wants to have to file their taxes twice,” she said.
Mir also thinks if Brown wins his case it could trigger a domino effect. “If you can find that the tax treatment is problematic, then all forms of disparate treatment become problematic.”
Mir’s article appears in this month’s issue of the Duke Law Journal. Brown’s case has a hearing set for Nov. 14.
Steeling their nerves
For Nelson and Dedmon, who live in a century-old restored stone farmhouse outside Alma in Wabaunsee County, the decision to file a challenge to Kansas’ same-sex marriage ban in state court was an easy one.
“We felt we had to step up. It’s our turn,” Dedmon said, stroking the couple’s yellow Labrador, Poppy. Dedmon was forced to retire from a law practice after being struck by lightning while hiking the Appalachian Trail in 2007. He recovered physically but has mild cognitive impairment.
In contrast to Dedmon’s quiet confidence, Nelson’s face tightened a bit when he was asked about the cost of the lawsuit, expected to reach $100,000.
“I am not sure how we will come up with the money. We have a Web page with a donation button on it, and we had one fundraiser, but we have raised less than $15,000 so far,” he said.
Brown spoke with around 30 couples about joining the suit, but one by one they declined, in most cases out of fear of being picketed by Westboro Baptist Church in nearby Topeka. (Since Westboro leader Fred Phelps Sr. died in March, the group has not been as active in Lawrence, Brown said.)
“Most days I’m OK with it, but some days I’m terrified,” Roberta Woodrick said, sitting on a bench outside a downtown Lawrence cafe, cradling a coffee mug. “We don’t want to rain trouble down on our neighbors.”
The Woodricks don’t want their picture in the paper. They don’t even want their pets photographed. Then Roberta, mustering a smile that looked like she was holding it up with her eyebrows, said, “But you know what? Other people have been terrified. We just have to steel our nerves, gosh darn it. Why should we leave? We love Kansas. We are Kansans.”
Nodding, Julie Woodrick said: “Somebody’s got to do it. We’ve ridden on the coattails of a lot of history before us.”
Asked what they hope to gain if the day comes when their marriage is fully recognized, the couple take turns rattling off minor annoyances heterosexual married couples don’t have to deal with:
Not being able to change a doctor’s appointment for a spouse.
Not being able to put a spouse on the insurance policy when renting a car.
Not being offered an upgrade or even a glass of champagne when a flight attendant or hotel clerk asks about your trip and you tell them it’s your honeymoon. Being denied such courtesies, while not rights, is an indignity that results from same-sex couples not having full legal recognition, Julie said.
“And we won’t even talk about insurance. Insurance makes you even madder,” Roberta said.
The Woodricks, who both have degrees from the University of Kansas and work for its library system, were also swayed by their respect for Brown, who Roberta has known for a long time as a friend as well as her attorney.
“David can be very serious when he’s talking about the case. He’s the attorney and you are the client,” Julie said. “I think it’s because he has this gigantic heart that you have to wall in to do that kind of work.”
Ethics built on perseverance
That heart was not fostered by Brown’s parents, but in spite of them.
His mother and father, though not alcoholics or substance abusers, beat Brown and his sister regularly when they were growing up in a suburb north of New York City.
“Violence didn’t achieve what they thought it would. I learned it was ineffective, and it gave me a desire to help people who were mistreated in any way,” he said between bites of vegetarian pizza at a restaurant on Massachusetts Street. From early on, the discrimination and sometimes violence directed at gays chewed at him, even though Brown is straight.
At age 18, Brown requested conscientious objector status to the Vietnam War. He was denied and subsequently received a draft notice. He refused induction and was arrested, but the case was dismissed when the draft ended.
In 1974, after several cycles of attending then dropping out of college, working jobs as diverse as delivering milk and single-handedly putting out a small community newspaper, Brown went back to school at Schenectady County Community College. He married a fellow student, and the couple made the Who’s Who Among American Universities and Colleges in the category “Junior College Couples.”
“I have always had the great fortune to find women who are a lot smarter than me,” Brown said.
After graduating from junior college, the couple transferred to the University of Kentucky, where Brown earned a bachelor’s degree in journalism in 1976. But the marriage ended abruptly when his wife announced she wanted to move to Europe with another man, a friend of the couple’s.
In December 1979, Brown got a job as a political reporter at the Albany (N.Y.) Times-Union. There he covered civil rights issues and the AIDS crisis. After numerous clashes with bosses, Brown quit the paper in 1986.
“I loved newspapering, but I hated the racist, homophobic, sexist attitude of the editors in charge. One of my editors believed AIDS was made up,” Brown said.
His girlfriend, who later became his wife, Liane Davis, pushed Brown to enroll in Albany Law School. Davis, 10 years older than Brown, was on the faculty at State University of New York-Albany’s School of Social Welfare, where she established a national reputation as an expert in women’s issues.
Davis was hired to teach at the University of Kansas in 1988. Brown followed in 1989 after graduating and completing the bar exam in New York.
The couple originally decided not to marry — “If our gay friends couldn’t marry, we weren’t going to either.” A desire to adopt two children from Costa Rica, biological siblings, changed their minds. They wed in 1991 and brought Elia, 41/2, and Antonio, 21/2, home.
In 1994, Brown moved his law practice to its current location, a renovated stone church in downtown Lawrence. A year later, Brown’s second marriage was cut short, this time by colon cancer, which claimed Liane’s life at age 53.
A mutual friend introduced Brown to his current wife, Mary Klayder, a tenured professor of English at KU who had been recently widowed. Klayder, who had no children, embraced the motherhood role thrust upon her. The children are grown now, and the couple relish spending time with their grandchildren.
Like Brown, Klayder gives short answers to personal questions.
“David works all the time. We are both workaholics. We don’t think in terms of hobbies. He writes, we cook,” she said.
“He is very careful and caring. That’s his personality. He has great perseverance, tenacity and strength of purpose,” she said.
Brown will need all those attributes as Nov. 14 nears, because the stakes riding on his case are high.
“To have a judge who is from Kansas issue a ruling in favor of same-sex couples will have a very different impact on people than a ruling from a federal court,,” said Mir, the author of the Duke Law Review article, because it will come from a local voice.
But a lot hangs on the outcome of the Nov. 4 election. If Democrat Paul Davis is elected governor, he could order the state not to proceed with an appeal if Brown wins, or not to defend an appeal if Brown loses. If Republican Sam Brownback wins, he has promised to continue to enforce the constitutional ban voters put in place.
So Brown is feeling the pressure.
“Right now I’m feeling frustrated. The law is clear-cut. It would save Kansas taxpayers a lot of money if the state would acknowledge that the law has changed rather than fighting a battle it cannot win,” he said.
But when he strides into the courtroom Nov. 14, the frustration will be gone, replaced with an old-fashioned, stomach-roiling case of nerves. “I guarantee you I will be nervous. I second-guess myself every day, and it only gets worse when I am standing in front of a judge.”
If Brown prevails, it could be a landmark decision that harkens back to another famous Kansas civil rights case: Brown v. Topeka Board of Education, in which the U.S. Supreme Court said separate but equal is not equal at all.