Gay marriage another win in legal career fighting status quo

By Dara Kam, The News Service of Florida
Photo from FreedomToMarry.org

Stephen Schlairet and Ozzie Russ

TALLAHASSEE, Fla. - Bill Sheppard and his wife Betsy White spent seven hours on the road Saturday to watch their clients tie the knot at a small, poolside ceremony in the rural Panhandle community of Chipley.

It wasn't any ordinary wedding for Sheppard and White, whose partnership extends to their Jacksonville law practice where the duo has racked up nearly 80 years of courtroom counsel resulting in landmark decisions about treatment of prisoners, civil rights and integration.

Steve Schlairat and Ozzie Russ's nuptials on Saturday -- and the weddings of thousands of gay and lesbian couples throughout Florida since Jan. 6 -- were made possible in part because of another groundbreaking lawsuit brought by Sheppard and White, who successfully challenged the state's prohibition against same-sex marriage. 

Photo from FreedomToMarry.org

Stephen Schlairet and Ozzie Russ

Beaming as Schlairat and Russ (pictured) exchanged vows, Sheppard later fought back tears during a wedding toast as he thanked the couple for "allowing us to be part of your fight."

Now bald-headed and bare-chinned because of heart medication that eviscerated his iconic unruly, shoulder-length hair and full beard, Sheppard has devoted his life to rattling the cages of the status quo.

So when Jim Brenner and Chuck Jones, two gay men who were wed in Canada but whose marriage wasn't recognized in Florida, approached Sheppard and White about filing a federal lawsuit against the state to undo the voter-approved ban on same sex marriage, Sheppard, a former Army Ranger, didn't hesitate. 

"We said, damn right. It needs to be brought. It's a righteous case. It's a meritorious case," Sheppard, 73, told The News Service of Florida in a telephone interview. "The only way anybody's ever going to get the right to marry is for somebody to kick their ass. And we're the people who like to do that."

In August, U.S. District Judge Robert Hinkle ruled that Florida's gay-marriage ban is unconstitutional, but placed a stay on his order until the end of the day on Jan. 5. Attorney General Pam Bondi fought against lifting the stay, unsuccessfully asking the U.S. Supreme Court to extend it. Though same-sex marriages started last week, an appeal of Hinkle's ruling on the constitutionality of the ban is pending before the 11th U.S. Circuit Court of Appeals.

Brenner said he reached out more than a year ago to Sheppard, who was recommended by another lawyer who turned down the case. Brenner was concerned that he and Jones would not be eligible for certain benefits, including retirement and health care, although they were legally married.

Sheppard called Brenner a week later and told him to come to his Jacksonville office the next day.

"There was no, 'Do you want to do this?' It was, 'Be there,' " Brenner, who lives in Tallahassee, said.

The following week, Brenner asked Sheppard to expand the lawsuit to include gay couples who wanted to get married but could not because of the ban. Sheppard initially bristled at the suggestion because he thought it might weaken the case for couples like Brenner and Jones who were seeking recognition of marriages in other states or countries.

"Things were changing, and they changed very quickly. We felt we had the facts. We had the law. We had the plaintiffs. Why would we not go forward and ask the court to look at the whole picture, not just half of it?" Sheppard said. "I'm so glad we did because look how many people got married since last Monday. Well, they wouldn't have if not for Ozzie and Stephen."

Within days of meeting with Sheppard and White, Brenner and Jones asked their friends Russ and Schlairat, an interracial gay couple living in the Panhandle, to join the suit.

It was Russ and Schlairat's poolside wedding on their 20-acre ranch outside Chipley that Sheppard and White attended less than a week after Hinkle's stay expired.

In court filings, Sheppard and White repeatedly referred to the landmark 1967 Loving v. Virginia case in which the U.S. Supreme Court struck down a law banning interracial marriage.

The analogy between the prohibition against gay marriage and the ban on interracial unions was obvious, Sheppard said.

"The fact that our clients happen to be interracial was very ironic, wasn't it," he said. "Was there a feeling of (making) history? I think from the very beginning there was."

Sheppard hesitated when asked if the same-sex marriage case would wind up becoming his legacy. One of Jacksonville's most-prominent lawyers, Sheppard helped establish the first racially integrated law firm in Florida. He also was instrumental in integrating the Jacksonville Fire and Rescue Department and has represented clients in numerous high-profile civil rights and criminal cases.

In the precedent-setting Doggett v. United States, for example, the U.S. Supreme Court sided with Sheppard's arguments that a delay between indictment and arrest can violate the constitutional right to a speedy trial. The widely cited opinion resulted in the overturning of thousands of criminal convictions.

Representing prisoners in the Costello v. Wainwright lawsuit against the Florida Department of Corrections, Sheppard convinced a federal judge that Florida inmates were subjected to poor sanitary conditions, overcrowding and inadequate health care. A consent order in that case resulted in the federal court's oversight of state prisons for two decades.

"It's kind of like which kid do you love the most? Each one of them is close to your heart for different reasons," said Sheppard, who describes himself as a "long-haired hippie freak."

Not surprisingly, the two couples in the gay marriage lawsuit heaped praise on Sheppard and White, who now consider the four men close friends.

Attorneys who have tangled with Sheppard over the years in the courtroom laud him as well.

"As a prosecutor, we always admired Bill's integrity and his honesty. If he told you something, you could count on it being accurate. He's a fearsome litigator, very, very effective in the courtroom and very loyal to his clients," said Curtis Fallgatter, who served as a federal prosecutor in Jacksonville for nearly two decades and is now a criminal defense lawyer. "Really all superlatives for Bill from my perspective. … If I was looking for a lawyer to hire, he'd be the guy."

Sam Jacobson, a Jacksonville lawyer whom Sheppard considers a mentor and is working with Sheppard and White on the marriage lawsuit, refers to the same-sex prohibition as a "human rights" concern instead of a gay rights issue. Like many others throughout the country, his attitude about the matter has evolved.

"I never set out looking to change history, and I sure never would have figured I'd be championing gay rights. When I was in high school, gays were considered perverts, twisted people. I just assumed there was something wrong with somebody like that," Jacobson, 78, said. It's only when I began to see gays and understand gays and begin to understand there's nothing wrong with them, they're people like anybody else. This exclusion is indefensible."

Jacobson pointed out that three dozen states and more than a dozen other countries already allow same-sex marriages. He quoted from Hinkle's ruling when asked about the impact of the Florida lawsuit.

"I think we've done some good for a lot of people. There are almost 20 million Floridians. There have to be a lot of people who are interested in same-sex relationships. … The arc of justice is bending their way. And I feel very good about that," he said.

Although the U.S. Supreme Court has not decided yet to take up any of the gay-marriage cases, White said she believes that same-sex marriages -- now legal in 36 states, including Florida -- will eventually become law throughout the country.

"You can't have the majority of the states recognize something as a constitutional right and a very small portion of the states saying you can't have that right. I don't see how that works in America. I don't see how your marriage can be recognized in Florida but if you move to Louisiana, it's not recognized," she said. "That's another reason it was so important for us that marriages start on Jan. 6. I don't think you extend an opportunity and then take it back."

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