JUDGE TIMOTHY S. BLACK strode into his bustling courtroom, long black robe whipping around his legs, and glanced at the sea of faces that was looking at him, the judge who would decide whether the will of Ohio’s voters trumped the wishes of a dying man. He looked at the lawyers, one for the City of Cincinnati, two for the State of Ohio, and three for the plaintiffs, and at the spectators who filled every row of the federal courtroom, with its mahogany paneling and plush maroon carpeting. But the judge’s gaze settled on one man in particular, whose tired eyes were hidden behind brown-framed glasses.
Jim Obergefell sat perfectly still at the plaintiff’s table. The walk from Al Gerhardstein’s law office to Cincinnati’s Potter Stewart United States Courthouse had seemed more like a mile than a single block, down the sidewalk, across East Fifth Street, past the bus stop, and Jim tried to control the quivers in his stomach by thinking about John, who would have admired the architecture in the elegant room if he weren’t home in bed, unable to move much more than his fingers.
Judge Black had called for an emergency hearing on the muggy July afternoon to decide whether to require the State of Ohio to issue a death certificate listing John Arthur as a married man. The fledgling case was already drawing newspaper headlines, and in the hours leading up to the hearing, the fifty-nine-year-old judge paced alone in his hushed office on the eighth floor of the federal courthouse. Only three days earlier, his law clerk had rushed in, clutching Al Gerhardstein’s lawsuit. “This is going to be a historic case,” she said.
The judge knew that any ruling would be narrow in scope, approving or rejecting the words on a single death certificate, but his decision would set legal precedent, opening the door to a broader challenge to the state’s ban on same-sex marriage.
Should one judge step in and upset the democratic process?
It was a colossal question, and he glanced across the room at pictures of his wife, Marnie, who had listened for hours to his blistering critiques of the Vietnam War when they met for the first time along the shores of southern Maine in the summer of 1972. Voter initiatives were a form of direct democracy that the judge considered fundamental. But a married man was about to die a single man, at least in the eyes of his state, and so the judge had decided to call for an emergency hearing, clearing his docket and feverishly researching case law to find a similar lawsuit in another city, some kind of precedent that would offer guidance and legal backing before he waded into the tumultuous world of gay rights. He found none.
He thought about his mentor, federal judge S. Arthur Spiegel, who had talked about judicial courage long after he sent ballplayer Pete Rose to prison for tax evasion or oversaw a landmark settlement involving a nuclear plant. Make a decision without looking over your shoulder, the elder judge had told Black.
Judge Black had a tremor in his hands that flared up when he was anxious, but his voice was deep and measured when he walked into the courtroom and looked down from the bench just after lunch on July 22, 2013.
“Good afternoon, ladies and gentlemen. We’re here in the open courtroom on the record in the civil case of James Obergefell and John Arthur. . . .”
Jim straightened in his seat and looked at Judge Black, whose expression was inscrutable. It had been only six days since the first meeting with Al, barely enough time to process the idea that they had just launched a federal lawsuit against the State of Ohio. Before court, Jim had drafted a statement that described his marriage to John, but he wasn’t entirely sure how the judge would react. Jim had come to talk about love, but he knew the state’s lawyers would argue the law—in particular, twenty-four words in Article 15, Section 11 of the Ohio Constitution.
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions.
Jim looked over at the two lawyers representing popular Ohio attorney general Mike DeWine, a former U.S. senator and prosecutor with eight children and nineteen grandchildren. His wife, Fran, baked fruit pies for annual ice cream socials and political rallies, and the couple had opened a school and food program in Haiti, named after their late daughter. As a Republican in Congress, DeWine had voted in favor of hate crime legislation in 2000 but voted against it two years later. In 2006, he led a push for a federal constitutional amendment that banned same-sex marriage. But his opposition in Jim’s case, he argued, was rooted in democracy.
“I don’t have, as attorney general, the luxury of deciding which parts of Ohio’s constitution to defend,” he would tell the Toledo Blade. “If the voters of Ohio 10 years ago had voted to allow gay marriage and that was in the Ohio Constitution I would defend that against attack. That is what the attorney general does.”
To Jim, the argument seemed more like rhetoric than sound reasoning, particularly since the attorney generals of California, Illinois, and Pennsylvania had recently announced they would no longer defend same-sex marriage bans. John and Jim had spent two decades together, largely removed from the politics of gay rights, but Jim’s blood boiled every time he looked at his dying husband. That morning before court, John must have sensed it, too. He whispered to Jim from his bed, his voice weak and wavering, “Go. Kick. Some. Ass.”
Al Gerhardstein arranged his notes and stood up, struck, as he always was, by the elegance of law. The courtroom was the only place where Al’s clients were equal to the powerful people they sued, where a poor black man could take on a police chief, a battered woman the domestic violence policies of an entire department. In court, the rights defined by the Constitution were not ideals but absolute guarantees that applied to everyone, no matter how disenfranchised.
Before court that morning, Al put on one of his favorite ties, with pictures of smiling children. He turned to Judge Black and said, “The evidence is going to show that these two men are in love, and they’ve been life partners for more than twenty years. James and John were recently married in Maryland. . . . Marriage[s] between same-sex couples are legal in Maryland . . . but their marriage is not recognized in Ohio. Why is that? Because Ohio doesn’t recognize any marriages between same-sex couples.”
“. . . So your argument is not that Ohio has to authorize same-sex marriage in Ohio, but your argument is that Ohio has to recognize another state’s law that permits same-sex marriage?” Judge Black asked.
Al knew from experience that social progress often came in fits and starts, painfully slow and unaffected by the passage of time, and so he had decided to wage a narrow fight focused solely on Ohio’s refusal to recognize marriages rather than the right to marry itself. Standing before Judge Black, the only thing Al would ask for was a single death certificate that recognized the marriage of John Arthur and Jim Obergefell.
“That’s exactly it, Judge,” Al said. “. . . John Arthur is dying. The evidence is going to show that he has days, or, at most, weeks left to live. When he dies, the final record of his life in Ohio will be his death certificate. Unless this court acts, the death certificate will not reflect his marriage at all and will not reflect that his husband, James Obergefell, is his surviving spouse.”
Al glanced behind him. “Plaintiff calls Mr. James Obergefell.”
Jim walked quickly to the witness stand, raised a shaking hand, and swore to tell the truth. He was grateful for the familiar faces in the courtroom, which included John’s favorite aunt, Paulette Roberts, a community theater actress with cropped gray hair and an infectious giggle.
Al walked to the witness stand and looked at Jim. “I would like you to tell the court, just briefly, how long you and John have been together and what the relationship has meant to the two of you.”
“We’ve been together since December 31, 1992, and it’s been my world,” Jim said, hoping his voice sounded steady. “It’s been my life. We’ve been in a committed relationship since that time. And in our eyes, we are married. Our families love us. Our families consider us married. Our families and friends treat us as a committed married couple.”
“Now, you’ve been a couple and lived together for twenty years. Why is it so important to be married?”
“Well, I think that’s the same for any couple who decides to get married, no matter how long they’ve been together. We want our country, our state, to recognize our relationship and to say, ‘Yes. You matter. You were married. You have the rights, the benefits, and the responsibilities that go with that, just as any other couple.’ With John near death, it was very important to us to have our relationship formalized and recognized by our government.”
“I don’t want to belabor this,” Al said seconds later, “but for the purposes of the record, we do need to have some sense of how imminent, if you know, John’s passing might be.”
Jim paused and took a breath. “I would say days, maybe weeks if we’re lucky. Last week, the RN with our hospice service pulled me aside after their visit with John to tell me I should start preparing because she believes the end is close.”
From her seat in the middle of the courtroom, John’s aunt started crying.
Al placed an Ohio death certificate in front of Jim. “Now, there’s a box Number 10 where it says, ‘Marital Status at Time of Death.’ Did I read that correctly?”
“Yes. You did.”
“And if this court does not act, how will that box be filled in?”
“Unmarried,” Jim said.
“. . . And the next box says, ‘Surviving Spouse’s Name.’ If this court doesn’t act, how will that box be filled in?”
“It will remain blank,” Jim said.
“How should it be filled in?” Al asked.
“James Obergefell. My name should be there,” Jim said in a rush.
“So, if you would, just tell the court how the problem with the death certificate and recognition of your marriage by the State of Ohio harms you and John.”
Jim pulled out his written statement. “I have to read this,” he said, looking down at his notes, “otherwise, I probably will not get through it.”
“That’s okay,” Al coaxed. “Go ahead.”
Jim shifted in his chair and looked up at the judge. “Your Honor, during our twenty years together, John and I have taken care of each other during good times and bad, for richer and poorer, and in sickness and in health. For the past two years, I’ve had the honor of caring for him as ALS has stolen every ability from him. Rarely a day goes by that he doesn’t apologize for what he feels he’s done to me by getting sick. He is physically incapable of doing anything to thank me or assuage his feelings of guilt, and we all know that there are times when words aren’t enough. We need to do something.”
Jim paused. “What he wants is to die knowing that I will be legally cared for and recognized as his spouse after he is gone. That would give him peace, knowing he was able to care for me as his last thank-you. When I learned that John would forever be listed as unmarried on his death certificate, nor would my name be listed as his spouse, my heart broke. John’s final record as a person and as a citizen of Ohio should reflect and respect our twenty-year relationship and legal marriage. Not to do so is hurtful, and it is hurtful for the rest of time.”
Judge Black glanced at the other attorneys and said, “Adverse parties wish to inquire?”
Bridget Coontz, the attorney for the State of Ohio, said, “No, Your Honor.”
Aaron Herzig, the attorney for the City of Cincinnati, said, “No, Your Honor.”
“You can step down, sir,” the judge told Jim.
Exactly 3,329,335 people in Ohio had voted to reject same-sex marriage in November 2004, embedding the law in the state’s constitution. Ohio had been one of eleven states that put the issue on the ballot on the same day that November, and voters in every state had passed nearly identical measures.
It was a stinging defeat to those in the gay rights movement who had long considered marriage equality among the most fundamental goals. After the Hawaii Supreme Court in 1993 ruled that denying marriage licenses to same-sex couples was discriminatory, it seemed to many that real change was underway. Beyond the promise of love and commitment, sanctioned by the state, marriage would simplify practical matters about children, property, money, medical decisions, births, and deaths. But Congress responded with the Defense of Marriage Act, defining marriage as a union between one man and one woman at the federal level, and the voters of Hawaii in 1998 put an end to the possibility of marriage by passing a constitutional amendment that gave the legislature, not the courts, the power to decide the issue.
The pushback was so sweeping that some leaders in the gay rights movement wanted to drop the fight for marriage altogether and focus instead on other fronts, like laws that protected the gay community from housing or workplace discrimination. But in 2003, the Massachusetts Supreme Judicial Court backed the freedom to marry after years of intense debate and litigation, clearing the way for gay couples to exchange vows for the first time in American history. Conservative groups countered with eleven ballot initiatives in November 2004, and in Ohio in the nine years since, no one had challenged the ban or its nuances.
Until now. Jim stepped down from the witness stand and walked back to his seat at the plaintiff’s table, wondering whether Judge Black would see fit to save his marriage. Jim’s legs felt wobbly and the whole scene seemed surreal, and he thought again of John, who had loved Ohio and had called it home for most of his life and now faced death without the state’s backing. In that moment, Jim ached for his husband, who had learned early on, when he was a lonely boy in the suburbs of Cincinnati, what it meant to be different.