By EZEKIEL KINGSBURY

On a muted Monday afternoon, as we neared the end of the student panel, I asked Al Gerhardstein a question that has lingered over our campus these past few months. “How do we confront the resignation, this despondency?” He was silent for a minute or so, then wept. 

Gerhardstein, Beloit alumnus (‘73) and architect behind Obergefell v. Hodges, visited campus last Monday to discuss restorative justice, but this visit was also a meditation on loss.

He began his lecture that night with Gabriel Taye, an eight-year-old Black boy from Cincinnati who loved dressing up for school. His appearance, however, made him the target of relentless bullying. One day, after being knocked unconscious in a school bathroom and left unattended for seven minutes, he was taken to the nurse, who failed to follow head injury protocols and downplayed the incident to his mother. The following day, after continued bullying, Gabriel died by suicide. Gerhardstein represented the mother in the ensuing litigation. 

Gerhardstein repeatedly emphasized the impossibility of restorative justice without leveling the playing field. Quickly, very quickly, talks turn toward money. But quick, fungible settlements do not address the systemic issues. The money the school offered her did not address Taye’s mother’s concerns. Only reforms, relationship-building and non-adversarial reforms, would. 

But “you can’t just walk into the school and say, ‘Give me some restorative justice,’” Al said. “You have to make sure they know they will pay if not.” 

In the end, Taye’s mother got the reforms she wanted, and a bench right in front of the entrance with Taye’s picture on it. She wrote, “I will ALWAYS stand up to bullies. I will ALWAYS be kind and respectful. I will ALWAYS be a friend to others. I will ALWAYS look out for those in need.” 

Gerhardstein signs a contract with each of his clients. The goal of his cases is not merely to make sure the client receives fair compensation, if there can ever be fair compensation for the death of a loved one. It is to fight for justice past compensation, something the legal system often fails to bring about. 

Such work brings us to Timothy Thomas, a black man shot by Cincinnati police for running in 2001. His murder followed five years of fifteen killings of black men by police in the city of Cincinnati, and all hell broke loose. 

Days of protests and riots erupted in response, fueled by years of systemic injustice and unaccountable policing. Gerhardstein became a leading figure in the legal battles that followed, helping to craft a historic collaborative agreement, an agreement that brought together all sorts of stakeholder groups, from ministers, to Blacks, to police spouses, to LGBTQ persons. 

Through leveling the playing field, the cops were willing to listen to the Black community’s demands for “Transparent, accountable police partnering with community to achieve public safety while reducing reliance on arrests.” Eventually, place-based policing (instead of perpetrator-based) was landed on as the most appropriate solution to, while still partnering with the community, achieving public safety.

The one nut Al hasn’t been able to crack, however, is employment. Unlike public works (like schools), corporations can easily end things with an NDA which, in Al’s experience, is how all these cases go. The playing field here seems nearly impossible to be leveled. 

Over breakfast at Bagels and More the following morning, we discussed the limits of community and the longing to return home. He ordered a bagel with butter and jam, and a coffee. We spoke about growing up religious—he, Catholic; I, Presbyterian—faith, and the law. “When we see [the law] used for evil, we need to stand up and push back,” he said. “We need to be as creative as them. We need to be as smart as them.”

Talking about Obergefell v. Hodges, he described the Supreme Court as small, intimate. “You stand there, and the justices are mere feet away.” Every question from the justices was anticipated except one: when Justice Alito asked about Ancient Greece. But the real weight of the case came not in the courtroom, but on decision day. “A lot of weeping,” he said. “Finally, the cynics cracked.” Was the death of Jim Arthur, Obergefell’s husband, outweighed?

He is, despite everything, an optimist. “I’m always looking for opportunity.” He doubts same-sex marriage will come up again at the Court, at least in the immediate future. Since Obergefell, Congress has enforced the recognition of marriages across state lines, and state constitutions have made great progress. 

But on the broader culture war docket, he is uneasy. “Very distressing,” he said, noting that the one thing conservatives seem to think parents shouldn’t have a say in is gender-affirming care. Even Gorsuch, he pointed out, has ruled in favor of trans rights in past case law. “Doctrinally, I worry they’ll screw things up, but nothing is permanent.”

That Monday afternoon, Al wept, and I asked him what brings him hope. “You must keep going,” he said. “It is all in the small victories.” His message to the despondent? Grieve. You must grieve. But you must also act. 

_{Featured image: Vivian Kopka’27}