Gay and lesbian candidates for your Supreme Court pick, Mr. President

BY TROY MASTERS & ANGELO CASIANO  | President Obama says he plans to pick a Supreme Court nominee to replace Justice Antonin Scalia as soon as next week.  Senate Majority leader Mitch McConnell and other leading Republicans have vowed to oppose any nominee he puts forward, setting up the perfect election year battle.

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The President is resolute. “It is not a political opportunity that reflects “left” or “right,” Democrat or Republican. It’s a serious obligation to make sure that an indisputably qualified person of integrity is nominated and confirmed to sit on the highest court in the land,” he said.

Of course, it’s not about sexual orientation, either.  Even so, with a record as harshly conservative and anti-gay as Scalia’s, it would be fitting if a qualified member of our community just happened to take his seat and become the first openly L, G, B or T appointed to the nation’s highest court.

Mr. President, The Pride LA, recognizing the great progress you have made in your quest to increase the diversity of the nation’s judicial system, has a few candidates in mind.  All of them are out LGBT people who are deeply experienced and young.  Most of them are your appointees to the federal bench.  Two are lesbian and gay legal pioneers who argued before Justice Scalia, drawing some of his most colorful and harsh dissents.

Todd Hughes, during his confirmation hearing before the Senate Judiciary Committee to be United States Circuit Judge for the Federal Circuit. June 19, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.
Todd Hughes, during his confirmation hearing before the Senate Judiciary Committee to be United States Circuit Judge for the Federal Circuit. June 19, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

TODD M. HUGHES
UNITED STATES CIRCUIT JUDGE
FEDERAL CIRCUIT
On September 24, 2013 the Senate voted 98-0 to confirm Todd M. Hughes, who became the nation’s first openly gay judge on a federal appeals court. Judge Hughes holds a law degree from Duke Law School, a M.A. from Duke University, and a A.B. from Harvard College. Prior to his appointment to the Federal Circuit, Judge Hughes served as Deputy Director of the Commercial Litigation Branch of the Civil Division of the United States Department of Justice from 2007 to 2013. He was the Assistant Director in that Office from 1999 to 2007 and a Trial Attorney from 1994 to 1999. From 1992 to 1994, Judge Hughes served as a Law Clerk to Circuit Judge Robert Krupansky of the United States Court of Appeals for the Sixth Circuit. He was also an Adjunct Lecturer in Law at Cleveland-Marshall College of Law during the Spring 1994 semester.

A potential Justice Hughes would not only become the first openly gay Supreme Court Justice, but would also give the Court a much-needed subject matter expert on issues such as international trade, government contracts, patents, trademarks, and police and veterans’ benefits, which are routinely decided at the U.S. Court of Appeals for the Federal Circuit.

At 49, the Ohio native holds the potential of becoming a lasting influence on the Court for generations to come. Justice Hughes would be a refreshing, sophisticated, and well-deserved addition to the Nation’s highest Court.

— Angelo Casiano

Judge Judith Levy
Judge Judith Levy

JUDITH LEVY
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF MICHIGAN
On July 25, 2013, President Obama nominated Levy to the United States District Court for the Eastern District of Michigan.

Prior to becoming an assistant U.S. attorney, Levy was a trial attorney for the Equal Employment Opportunity Commission from 1999 to 2000 and served as a law clerk to Judge Bernard A. Friedman on the U.S. District Court for the Eastern District of Michigan.   Levy attended the University of Michigan Law School and the University of Michigan. She is the 2013-2014 Public Interest/Public Service Faculty Fellow Lecturer.

The full U.S. Senate voted 97-0 for final confirmation.  She received her judicial commission on March 14, 2014.

Judge Darrin P. Gayles
Judge Darrin P. Gayles

DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF FLORIDA
Miami-Dade Circuit Judge Darrin P. Gayles made American history when confirmed unanimously in June 2014 by the U.S. Senate; he became the nation’s first openly gay black male jurist.

Gayles previously served on the Florida Circuit Court from 2011 until 2014 and prior to that Miami-Dade County Court, from 2004 to 2011. He is a graduate of George Washington University School of Law.

President Barack Obama nominated Gayles and, not without controversy, White House officials noted that he would be the first openly gay male African-American federal judge.

Obama’s appointment of state Circuit Judge William L. Thomas, who is also gay and black, for the seat ran into a dead end, his nomination blocked by GOP Presidential candidate Sen. Marco Rubio (who initially supported him).

Rubio’s opposition to Thomas stirred accusations of racism and homophobia;  Rubio’s opposition thwarted his hearing.

After Gayles’s nomination, Rubio expressed no opposition to his appointment to sit on the Southern District of Florida bench, which hears civil and criminal cases from Key West to Fort Pierce.

“He is a dedicated professional. Whip smart. He’s everything you’d want in a judge in terms of experience and temperament,” said Equality Florida Executive Director Nadine Smith, on behalf of the Florida Why Courts Matter coalition. “It’s a testament to his extraordinary qualifications and how far we’ve come as a society that racism and homophobia haven’t been used to try to hold him back.”

“He’s accomplished a lot under GOP scrutiny. That speaks a lot to himself and how he conducts himself. To be approved 98-0 in a place that unbelievably contentious is phenomenal. It’s almost unheard of,” said Steve Adkins, the chamber’s president and a longtime friend. “He’s always been a really grounded individual and a super guy.”

Staci Michelle Yandle
Staci Michelle Yandle

STACI MICHELLE YANDLE
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF ILLINOIS
Staci Michelle Yandle was in private practice for 20 years before being chosen by President Obama for a slot on the U.S. District Court for the Southern District of Illinois. The U.S. Senate confirmed Yandle on June 17, 2014, on a vote of 52-44.

Yandle is the second openly lesbian African-American federal judge in the country. Judge Deborah Batts, nominated by President Bill Clinton, was sworn in as a federal judge in Manhattan in June 1994. Batts took senior status in April 2012.

Yandle said in a July 2012 interview that the judicial world needs to be more accepting of the LGBT community.

“When I first started practicing, for a while I did not feel comfortable acknowledging my sexual orientation because I didn’t want it to cost me my job,” she said. “I wanted to be judged on my merit and my merit alone. Many members of the LGBT community still have that fear. We are a traditional profession that is conservative in many ways.”

At her hearing before the Senate Judiciary Committee on March 12, 2014 Yandle was asked by Illinois Senator Dick Durbin if she agreed with a statement by Chief Justice John Roberts that stated if the Constitution says the “little guy” wins, they win, and if the Constitution says the “big guy” wins, they win. Yandle responded:

“I think his statement is absolutely correct, and I think that’s the proper role of a district court judge. It would be certainly what I would value as well. Based on my years of experience, as you mentioned, senator, trying cases on behalf of plaintiffs, it has given me actually a keen appreciation for the importance of impartiality and judicial integrity.”

U.S. Judge Robert L. Pitman of the United States District Court for the Western District of Texas
U.S. Judge Robert L. Pitman of the United States District Court for the Western District of Texas

ROBERT PITTMAN
UNITED STATES DISTRICT JUDGE
WESTERN DISTRICT OF TEXAS

Robert Lee Pitman is federal judge for the United States District Court for the Western District of Texas. Prior to joining the court, he became the nation’s first openly gay United States Attorney for the same district.

Pitman began his career at the Austin, Texas based international law firm of Fulbright and Jaworski.

In 2001, he began serving as interim US Attorney for the Western District of Texas. In that capacity he was able to respond to the terrorist attacks of September 11, 2001 by forming an anti-terrorist task force that united local, state, and federal law enforcement agencies to secure Texas’ international border.

In October 2003, Pitman was selected to serve as a magistrate judge for the United States District Court for the Western District of Texas. As Magistrate Judge, Pitman consistently ranked highest among all local, state, and federal judges in the judicial poll conducted annually by the Austin Bar Association.

In 2009, Republican Senators John Cornyn and Kay Bailey Hutchison sent Pitman’s name to Democratic President Barack Obama as one of two candidates for United States Attorney for the Western District of Texas. The recommendation of Pitman, who is openly gay, was publicly opposed by a social conservative group in Texas. On June 27, 2011, almost two years after Pitman was recommended for the post, Obama nominated Pitman to be United States Attorney for the Western District of Texas.

That he became a Federal Judge with the support of Pitman of two angtigay Texas senators — Senators Ted Cruz and John Cornyn — was a surprise to Pitman

quinones

NITZA I. QUINONES ALEJANDRO
UNITED STATES DISTRICT JUDGE,
EASTERN DISTRICT OF PENNSYLVANIA
Nitza Quiñones Alejandro is a Puerto Rican judge who has since 1991 fought adversity and paved the way for Hispanic women and the LGBT community.

She is the first openly gay Hispanic woman appointed to the federal judiciary, serving on the U.S. District Court for Eastern District of Pennsylvania.

Quiñones was the first Hispanic Woman to be a judge on the Philadelphia County Court of Common Pleas, where she has worked since 1991. Her appointment in 2013 made her the seventh openly gay judge to serve on the federal bench.

She said the most important attribute for a judge to possess is integrity: “In exercising integrity, the judge must also be a good listener, patient, fair, impartial, courteous, reasonable, ethical, and decisive,” she said. “I believe I possess these qualities.”

Quiñones was born and educated in Puerto Rico, earning her bachelor’s degree in business administration from the University of Puerto Rico in 1972, and her law degree from the School of Law at the University of Puerto Rico in 1975.

Before being elected to the state court, Quiñones Alejandro worked as an attorney advisor for the U.S. Department of Health and Human Services from 1977 to 1979 and staff attorney for the Department of Veterans Affairs from 1979 to 1991.

Alison J. Nathan-U.S. District Court, Southern District of New York.
Alison J. Nathan-U.S. District Court, Southern District of New York.

ALISON NATHAN
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF NEW YORK
“Alison Nathan is a distinguished individual who has demonstrated an unwavering commitment to justice throughout her career,” said President Obama.  “I am grateful for her decision to serve the American people from the District Court bench.”

The U.S. Senate confirmed Alison Nathan to serve as a federal judge on the U.S. District Court for the Southern District of New York in a close 48-44 vote that included about the “temperament” of the out lesbian nominee.

Alison J. Nathan previously served in the Office of the Attorney General of the State of New York as Special Counsel to the Solicitor General, a position she has held since 2010.

From 2009 to 2010, Nathan served as a Special Assistant to President Obama and an Associate White House Counsel.

Prior to joining government service, she spent a number of years as an academic, first as a Visiting Assistant Professor of Law at Fordham University Law School from 2006 to 2008 and later as a Fritz Alexander Fellow at New York University School of Law from 2008 to 2009.

From 2002 to 2006, Nathan was an associate in the New York and Washington, D.C. offices of Wilmer Cutler Pickering Hale and Dorr.  Nathan served as a law clerk for the Honorable John Paul Stevens of the Supreme Court of the United States from 2001 to 2002 and as a law clerk to the Honorable Betty B. Fletcher of the Ninth Circuit Court of Appeals from 2000 to 2001.

Nathan received her J.D., magna cum laude, in 2000 from Cornell Law School, where she was Editor-in-Chief of the Cornell Law Review.  She received her B.A. in 1994 from Cornell University.

Paul Oetken, First Openly Gay Federal Judge
Paul Oetken, First Openly Gay Federal Judge

JUDGE PAUL OETKEN
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF NEW YORK
Paul Oetken was the first openly gay man to serve on the federal bench.  He was confirmed July 18, 2011 in an unremarkable fashion, without a word of objection on the Senate floor. When the vote tally of 80-13 was read out, there was no cheer or reaction of any kind. Senators continued their conversations as if nothing unusual had happened. The nominee’s sexual orientation did not create controversy of any kind; he was confirmed based on his moderate politics and pro-business record. Oetken was a corporate lawyer with Cablevision.

On January 26, 2011, President Barack Obama nominated Oetken to serve on the United States District Court for the Southern District of New York, one of the key federal trial courts in the nation.

“As the first openly gay man to be confirmed as a federal judge,” Sen. Chuck Schumer (D-N.Y.) Said, “he is a symbol of how much we have achieved as a country in just the last few decades. And importantly, he will give hope to many talented young lawyers who until now thought their paths might be limited because of their sexual orientation.

Senator Chuck Grassley (Iowa), ranking Republican on the Senate Judiciary Committee, gave a brief speech in support of Oetkin, mentioning the nominee’s Iowa roots but nothing about his homosexuality. He recited Oetkin’s credentials, including his Yale Law degree and Supreme Court clerkship. “I support this nomination and congratulate him on his professional accomplishments,” Grassley said.

Oetkin had downplayed nothing about his sexual orientation: his work with Lambda Legal and the ACLU Lesbian, Gay, Bisexual and Transgender Project, or his co-authorship of a Supreme Court amicus brief opposing anti-gay law. At his confirmation hearing, he introduced Grassley to his partner, Makky Pratayot.

Paul Oetken is living proof to all those young lawyers that it really does “get better” (in reference to the “It Gets Better” campaign). Paul Oetken is the first openly gay man to go through an Article III confirmation process in this country, which makes his ascent historic.

fitzgeraldMICHAEL FITZGERALD
UNITED STATES DISTRICT JUDGE
CENTRAL DISTRICT OF CALIFORNIA, LOS ANGELES
Michael W. Fitzgerald, appointed by President Obama in 2011, is the first gay California federal judge. He serves the United States District Court for the Central District of California, presiding over the Court’s Western Division in Los Angeles..

From 1998, Fitzgerald was a partner at the law firm of Corbin, Fitzgerald & Athey LLP in Los Angeles, where he handled complex civil and criminal cases in both federal and state courts, at trial and on appeal. He previously practiced at the Law Offices of Robert L. Corbin PC in Los Angeles from 1995 to 1998 and the Los Angeles office of Heller Ehrman White & McAuliffe LLP from 1991 to 1995. From 1988 to 1991, Fitzgerald served as an Assistant United States Attorney in the Criminal Division of the United States Attorney’s Office for the Central District of California. Prior to that, he was an associate at the law firm of O’Donnell & Gordon from 1986 to 1987.

He received his undergraduate degree in 1981 from Harvard University, graduating magna cum laude, and his law degree in 1985 from the University of California, Berkeley School of Law. In law school, he served as Managing Editor of the Industrial Relations Law Journal, and also received the American Jurisprudence Award in Criminal Law. After graduating from law school, he clerked for the Honorable Irving R. Kaufman of the United States Court of Appeals for the Second Circuit.

During his professional career, Fitzgerald engaged in pro bono and public service in a variety of contexts, including as a Deputy Chief Counsel to the Rampart Independent Review Panel, which examined operations of the Los Angeles Police Department. He also served on the Los Angeles County Bar Association’s Advisory Committee for the Office of the District Attorney, and as a volunteer counsel to the Webster Commission, which investigated the Los Angeles Police Department’s response to the 1992 riots that erupted after the verdict in the Rodney King trial. In 1994, he received the Maynard Toll Pro Bono Associate Award from the Legal Aid Foundation of Los Angeles and the Richard E. Guggenhime Pro Bono Award from Heller, Ehrman, White & McAuliffe.

Fitzgerald also has been active in bar associations, and has been a member of the White Collar Crime Committee of the American Bar Association, the Board of Directors of the Los Angeles chapter of the Federal Bar Association, the Association of Business Trial Lawyers, and the Los Angeles County Bar Association. He also served as a Lawyer Representative to the Ninth Circuit Judicial Conference and one of two lawyers on the Ninth Circuit Attorney Admission Fund Committee.

He was involved in both gay and non-gay legal and political issues and contributed “hundreds of hours” doing pro bono work that led to the elimination of a gay ban on FBI agents in 1993.

Pamela Ki Mai Chen
Pamela Ki Mai Chen

PAMELA KI MAI CHEN
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF NEW YORK
Chen is the daughter of Chinese-American immigrants. Her father was born near Shanghai and grew up there, and her mother was born in Changsha, the capital of Sichuan Province. They met in the U.S. at the University of Chicago during the second world war.

She received her bachelor’s from the University of Michigan and her law degree from the Georgetown University Law School. She then served as an associate for Arnold Porter and Asbill, Junkin, Myers & Buffone, working on a variety of civil litigation matters.

Chen entered public service in 1991, serving for eight years in the U.S. Department of Justice as a trail attorney in the Civil Rights division. There, she specialized in the reform of state and local prisons, juvenile detention centers, and residential facilities for the mentally ill and developmentally disabled.

Moving to New York in 1998 to work in the U.S. Attorney’s Office for the Eastern District of New York, Chen now serves as Chief of the Civil Rights Section’s Criminal Division. She has specialized in the investigation and prosecution of criminal civil rights matters, including human trafficking, and hate crimes.

Mary Bonauto, Esq., Civil Rights Director at GLAD, Gay & Lesbian Advocates & Defenders
MARY BONAUTO
CIVIL RIGHTS ATTORNEY
Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.

Mindful of the risks of loss and political backlash when social reform litigation advances ahead of public understanding, Bonauto and her GLAD colleagues initially pursued an incremental, state-based strategy to secure government marriage licenses for same-sex couples in the New England states. Bonauto and Vermont colleagues formed a critical partnership in 1997, which is widely acknowledged as a pivotal time and place to challenge a state’s exclusion of gay and lesbian couples from marriage.

The Vermont Supreme Court’s ruling in Baker v. Vermont (1999) was the first to hold that same-sex couples must be provided all of the same protections and obligations provided to married couples, and the state legislature established the first civil union law in the nation in 2000 to comply with that ruling.

GLAD’s subsequent filing of Goodridge v. Department of Public Health in Massachusetts, relying again on state constitutional guarantees of equality and liberty, resulted in the 2003 landmark decision that made that state the first to extend marriage equality to same-sex couples. Bonauto’s constitutional arguments in Goodridge articulated the breadth of the practical and social harms imposed by the state’s exclusion on real families and their children. In defending the marriage ruling from attempts to substitute civil unions, she drew on painful lessons from our nation’s past, most notably the history of unjust “separate but equal” doctrines as substitutes for racial and gender equality, and the Massachusetts high court was the first to reject civil unions as a substitute for marriage. The Goodridge ruling, the transformative effect of same-sex couples marrying on the public’s views, and subsequent legal (in Connecticut), legislative (in Vermont, Maine, and New Hampshire), and ballot-based (in Maine) victories all provided a solid foundation and roadmap for future strategies across the nation, including at the federal level.

In 2009, Bonauto led a team from GLAD and private law firms in the first strategic challenge to section three of the federal Defense of Marriage Act (DOMA) and argued that the federal government’s non-recognition of the lawful and rapidly growing number of marriages unconstitutionally denied same-sex couples more than 1,000 federal protections and obligations usually available to married persons. Her case—Gill v. Office of Personnel Management—provided the first federal court wins in challenges to DOMA (in 2010 and 2012 rulings), and served as an important model for United States v. Windsor, the landmark case that ultimately resulted in the U.S. Supreme Court striking down DOMA in 2013 and on which she served as a strategist and external coordinator of friend-of-the-court briefs. In the name of equal treatment and dignity for all people, and in concert with other litigators and advocates across the country, Bonauto is breaking down legal barriers based on sexual orientation and influencing debates about the relationship between the law and momentous social change more broadly.

Mary L. Bonauto received a B.A. (1983) from Hamilton College and a J.D. (1987) from Northeastern University School of Law. She has been the Civil Rights Project Director at the Boston-based Gay & Lesbian Advocates & Defenders (GLAD) since 1990. Since 2013, she has been the Shikes Fellow in Civil Liberties and Civil Rights and Lecturer on Law at Harvard Law School.  

— MacArthur Foundation

Evan Wolfson, founder and president of Freedom to Marry, outside the U.S. Supreme Court on the day of arguments in the case challenging California's Prop 8 legislation. March 26, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.
Evan Wolfson, founder and president of Freedom to Marry, outside the U.S. Supreme Court on the day of arguments in the case challenging California’s Prop 8 legislation. March 26, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

EVAN WOLFSON
CIVIL RIGHTS ATTORNEY
In 1983, Harvard Law School student Evan Wolfson submitted a remarkably prescient dissertation outlining national strategies for achieving marriage equality.  It was a daring idea for the time but over the next 30 years Wolfson’s road map, though necessarily tweaked along the way, was his near singular mission…and one that has benefitted all of us.

While he is without question THE architect of a national legal, political and social strategy that succeeded in expanding your constitutional rights, his career beyond marriage equality is remarkable.

Wolfon’s bonafides reach well beyond LGBT legal advocacy. He taught political philosophy at Harvard College and later served as Kings County, NY (Brooklyn) assistant district attorney. Later he served the New York Appeals Bureau writing a Supreme Court amicus brief that led to a nationwide ban on race discrimination in jury selection (Batson v. Kentucky). A brief he wrote to the New York Court of Appeals helped win the elimination of the marital rape exemption (People v. Liberta). He was Associate Counsel to Lawrence Walsh in the Office of Independent Counsel investigation into the administration of President Ronald Reagan over the Iran-Contra affair. In 1992, he was appointed to the New York State Task Force on Sexual Harassment.

During the 1990’s, while working as an attorney for Lamba Legal Defense and Education Fund, he served as co-counsel in the historic Hawaii marriage case that launched the ongoing global movement for marriage-equality.  The Defense of Marriage Act resultedfrom fears that if marriage for gay couples was allowed in Hawaii momentum would build nationwide.  With its passage Wolfson set up Freedom to Marry (www.freedomtomarry.org), an organization that helped guide marriage equaity toward June 2015’s historic U.S. Supreme Court ruling.

Along the way he also participated in numerous gay rights and HIV/AIDS cases, arguing cases like the U.S. Supreme Court in Boy Scouts of America v. James Dale. The National Law Journal named Wolfson one of “the 100 most influential lawyers in America.” Newsweek/The Daily Beast dubbed him “the godfather of gay marriage” and Time Magazine named him one of “the 100 most influential people in the world.”

Wolfson was 2012’s co-recipient of the Barnard Medal of Distinction along with none other than President Barack Obama.

Kenji Yoshino
Kenji Yoshino

KENJI YOSHINO
PROFESSOR OF CONSTITUTIONAL LAW
NEW YORK UNIVERSITY LAW SCHOOL
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law.  He was educated at Harvard (B.A. 1991), Oxford (M.Sc. 1993 as a Rhodes Scholar), and Yale Law School (J.D. 1996).  He taught at Yale Law School from 1998 to 2008, where he served as Deputy Dean (2005-6) and became the inaugural Guido Calabresi Professor in 2006.  His fields are constitutional law, anti-discrimination law, and law and literature. He has received several distinctions for his teaching, most recently the Podell Distinguished Teaching Award in 2014.

Yoshino is the author of three books—Speak Now: Marriage Equality on Trial (2015); A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice (2011); and Covering: The Hidden Assault on Our Civil Rights (2006). Yoshino has published in major academic journals, including The Harvard Law Review, The Stanford Law Review, and The Yale Law Journal.  He has also written for more popular forums, including The Los Angeles Times, The New York Times, and The Washington Post.

Yoshino makes regular appearances on radio and television programs, such as NPR, CNN, PBS and MSNBC. In 2015, he became a regular contributor to the New York Times Magazine’s podcast and column “The Ethicists.”

In 2011, he was elected to the Harvard Board of Overseers for a six-year term. He also serves on the Advisory Board of the Center for Talent Innovation, the Board of the Brennan Center for Justice, the External Advisory Panel for Diversity and Inclusion for the World Bank Group, the Global Advisory Board for Out Leadership, and the Inclusion External Advisory Council for Deloitte.

He lives in New York City with his husband and two children. (from kenjiyoshino.com)