ON JUNE 26, 2013, two years and one day after the ALS diagnosis, John called softly from the bedroom. “Jim, the Supreme Court ruling is about to come out.”
Jim had been up since dawn, answering e-mails from work at the dining room table, and he was already bone tired. He slept in the guest room but had a wireless doorbell set up next to John’s hospital bed so he could ring for help in the night when he needed his position shifted. Soon, Jim knew, John would no longer be able to push the bell, and they would swap it for a pressure-sensitive pad that buzzed when John inched his head slightly to the right.
Jim hurried to the bedroom, where John was propped up under a blanket. On television, MSNBC’s Chris Jansing said, “Take a look now, huge crowds outside the Supreme Court today. Nine justices will rule on two cases that could redefine equality and gay rights in this country.”
Jim reached for John’s hand, eyes fixed to the screen.
For weeks, they had been waiting to find out whether the Supreme Court would strike down the seventeen-year-old Defense of Marriage Act, known as DOMA. President Bill Clinton’s press secretary at the time had called the law “gay baiting, plain and simple.”
John and Jim had been a couple for just four years when the law passed, denying same-sex spouses access to federal marriage benefits. DOMA also allowed states to refuse to recognize same-sex marriages even if they were legally performed in other states, a provision that one day would alter the course of Jim’s life long after John was gone.
The eighty-four-year-old plaintiff at the center of the Supreme Court case was the daughter of Russian Jewish immigrants who had lost the family’s ice cream shop and home during the Great Depression. In 1965, young Edie Windsor, working at IBM, started dating Thea Spyer, whose family had fled the Nazi invasion of the Netherlands. After forty years together in New York City, they decided to marry in Toronto, Canada, where same-sex marriage was legal. Spyer died from a heart condition two years later. Though federal law allowed a spouse to leave assets to a surviving spouse without incurring estate tax, the IRS sent Windsor a $363,000 bill, as if the women had never been married.
The case seemed outrageous to Jim, who wondered over long discussions with John how a grieving woman could be treated with such dispassion. If the Supreme Court required the federal government to respect the lawful marriages of same-sex couples equally under the Constitution, it would be the biggest victory in the ninety-year history of America’s gay rights movement, which had started in Chicago with a fledgling organization for gay men called the Society for Human Rights.
In the bedroom, Jim glanced at John, who was watching the broadcast intently, his dark glasses perched on the end of his nose. It was a bright, 90-degree day in Washington, D.C., and before the U.S. Supreme Court’s towering Corinthian columns, flag poles and fountains, kissing couples waved American flags and signs that read ALL LOVE IS EQUAL. NBC’s Pete Williams announced over the cheers, “The Supreme Court has just struck down the federal Defense of Marriage Act.”
Jim sucked in his breath and bent down to embrace John, happier than he had been in months. The broadcast continued, “. . . The federal government can’t make distinctions between same-sex and opposite-sex couples in terms of what marriages the federal government would recognize.”
The Supreme Court had also declined to rule on the merits of Proposition 8, a voter initiative that banned same-sex marriage in California, reinstating a lower court ruling that had allowed the state to issue licenses to gay couples.
Jim kissed John lightly, loving the feel of his face, and then, because it seemed as if the country was changing, Jim looked at his dying partner and said for the first time in twenty years, “Let’s get married.”
John said yes.
The Windsor ruling only addressed whether the federal government had to recognize the existing marriages of gay couples, leaving open the question of whether states like Ohio, with long-standing marriage bans, had to respect them as well. But the U.S. government for the first time would broaden its definition of marriage to include the single most important relationship in Jim’s life, and for now, that was enough.
Jim raced to his computer in the dining room. At 10:56 A.M., less than an hour after the Supreme Court announcement, he e-mailed Paulette Roberts:
We may need your services. As soon as the Supreme Court ruled DOMA unconstitutional, I hugged John and asked him to marry me. That means getting to the closest state that allows gay marriage but doesn’t require residency. That’s New York. Can you marry people in New York? I can’t imagine having anyone else marry us.
Suddenly impatient, Jim decided to call. “What are you doing next week?” he asked Paulette, laughing and crying. “How about a trip to New York?”
Paulette hadn’t yet heard about the decision, but she could hear the giddiness in Jim’s voice. “What happened?”
“I asked John to marry me and he said yes.”
Paulette didn’t hesitate. “Wherever you want to go.”
She called a court clerk in New York City who shouted into the phone, “Yes!” when Paulette told her about that morning’s Supreme Court ruling. Two years earlier, New York had become the seventh state in the country to allow gay couples to marry. When the legislation passed, Niagara Falls was lit in rainbow colors.
The problem, Jim quickly learned, was that New York required both partners to show up at the courthouse and apply for a marriage license, then return for the ceremony. John’s last trip out of the house four months earlier had caused great discomfort, and that was only a three-mile trek across town in their minivan. Jim had to find another way.
He scrambled to research the rules in other states and immediately settled on Maryland, which required only one person to appear at the courthouse for a marriage license. In the 1970s, Maryland was the first state in the country to pass a law that expressly defined marriage as a union between a man and a woman. Forty years later, it was among the first to extend marriage rights to same-sex couples by popular vote, a watershed moment in the gay rights movement.
Jim would fly alone to Baltimore and then drive to nearby Annapolis, sprawled along the Chesapeake Bay thirty miles east of Washington, D.C. But he still had to get John to Maryland for the ceremony. He looked into ambulances, which were too slow and bumpy, and was more than once struck by the absurdity of having a bedridden man travel 520 miles when the Hamilton County Courthouse was only six blocks away. The best option was a plane fitted with medical equipment, which would get to Maryland quickly and had room for a stretcher. The flight would cost nearly $14,000.
Their story moved Julie Zimmerman, a former neighbor and writer who was on the editorial board at the Cincinnati Enquirer. She set up an interview with John and Jim and brought along video producer Glenn Hartong. John couldn’t speak a sentence without pausing to breathe, and his words were slow and halting.
“Had the Supreme Court made this decision one year earlier,” he told the journalists, “this would have been as simple as us taking a trip because I could still walk. It’s the progression for me of ALS. It’s just compounded everything.”
“I don’t live in a world of regret.” John said carefully. “But I sure wish we were a year in the past.”
There was a long pause, long enough for Hartong to pan, reframe and refocus his camera.
Finally, Jim smiled gently and said, “Me too.”
Watching the exchange, Hartong thought it was the most powerful understatement he had ever witnessed as a journalist.
Relatives and friends donated for the medical flight, and Paulette offered to stay with John while Jim flew to Maryland to apply for the license. Even twelve hours away from home required significant planning, but there was simply no time, so Jim rushed Paulette around the house, to John’s stash of pain medication, to the controls on his airbed, to the blankets, towels, cups, computer.
Paulette would remember how John politely refused to eat or drink that day, clearly trying to stave off the need to use the bedpan. With no ability to move his arms or hands, he would need help positioning himself. Finally, John had said, “Would it bother you to touch me?”
Damn this disease, Paulette thought, wondering how long he had waited before asking. “John,” she said, pulling back the blanket. “The only reason I’m not touching you is because I know it hurts.”
Jim arrived home late that night. Two days later, after the Maryland marriage license came in the mail, he posted on Facebook: “One step closer to being a married man!”
Two pilots and a nurse were waiting on the tarmac when the ambulance rolled into Cincinnati Municipal Lunken Airport just after nine A.M. and came to a stop next to the medical plane that would fly John and Jim to Maryland.
John, wearing a green shirt with Velcro that he’d bought when he had still been able to walk, was buckled into a narrow gurney. The ambulance ride had been uncomfortable, and Jim clutched John’s hand as a couple of paramedics flung open the back doors. The sun glared off the waiting Learjet. “I can’t believe it’s happening,” Jim whispered to John.
John’s eyes were closed, but he opened them when Paulette jumped into the back of the ambulance and kissed him on both cheeks. Jim wiped John’s mouth with his fingers, then stepped out onto the tarmac with his backpack. Tucked inside was the marriage certificate with the state of Maryland’s official gold seal: James Robert Obergefell and John Montgomery Arthur.
Two paramedics heaved John’s gurney out of the ambulance and maneuvered it through the plane’s narrow doorway with help from one of the pilots. Jim hugged Martha Epling, who was waiting on the tarmac with a hospice nurse, and patted his backpack.
“One last check, make sure I have the all-important marriage license,” Jim said, digging through the bag. Then he boarded the plane with Paulette.
The takeoff was smooth, and Jim sat back in his leather seat next to John’s gurney. He gripped John’s hand again, worried that the stress of travel would escalate the disease’s relentless crawl across John’s body. Jim could see that the bars on the gurney were digging into John’s back and legs, and Jim hated how John suffered. But John slept as the plane soared toward Maryland.
This day, more than any other, needed to be perfect. Jim thought about the ring that John had given him on that rainy night in a Columbus hotel in 1993, with five perfectly set diamonds. Jim had worn it off and on for years, but now he would wear a wedding ring cast in sterling silver. Staring idly at the wisps of clouds just beyond the plane’s windows, it seemed to Jim as if each day from the past twenty years had led them to this moment, and he felt a rush of tenderness as he looked at John.
More than once in recent months, John had said, “I feel guilty about ruining your life.” John saw marriage as the only way of making certain that Jim was cared for financially and legally. Jim just saw love, profound and enduring, and a marriage ceremony would allow him to tell John that.
Ninety minutes later, the plane touched down on a runway outside of Baltimore. They would marry here, inside the plane’s tiny cabin, in front of Paulette and video producer Glenn Hartong, who had flown to Baltimore earlier that morning to meet them. There was no room for standing, but John was on a stretcher anyway, so Jim leaned forward in his seat and absently brushed his thumb back and forth across John’s limp hand. John fixed his eyes on Jim.
Paulette sat behind them and said, “Today is a momentous day not only in the lives of two of the most loving special men I have ever known, but also in the lives of all who know, love, and respect them. . . . Twenty-six months ago, John was diagnosed with ALS. Since then, the amazing relationship between John and Jim has become even closer, even more devoted, even more loving.
“And it was pretty damn great before John became ill.”
John managed a half smile.
Jim had written his vows a few days earlier, surprised at how easily the words flowed. He said softly, “We met for the first time. My life didn’t change. Your life didn’t change. We met a second time. Still nothing changed. Then we met a third time, and everything changed.”
He cleared his throat. “As you recently said, it was love at third sight. And for the past twenty years, six months, and eleven days, it’s been love at every sight. You’ve taught me generosity. You’ve taught me balance. You’ve given me joy. You’ve loved me when it was easy and when it was difficult. You’ve made me a better person. Thank you—for seeing in me someone you could spend your life with. Thank you—for allowing me to love you when you thought you were lost and beyond love.”
“I give you my heart, my soul, and everything I am,” Jim said. “I am honored to call you my husband.”
Jim reached for John’s left hand and pulled it close so he could wiggle the ring onto John’s finger. Jim vowed, “With this ring, I thee wed.” Then he lifted John’s left hand, moved it toward his own and slipped his own ring onto his finger.
“With. This. Ring. I. Thee. Wed,” John said, careful not to trip on the words.
“John Montgomery Arthur, do you, continuing from this day, take James Robert Obergefell to be the love of your life, your eternal partner, your husband?”
“I do,” John said.
“. . . In witness of those present, in the loving thoughts of the many people who wish they could have been with us today, in the spirit of loved ones who have come before, by license granted to me by law and with the respect of the law by our great land, I now pronounce you husband and husband, forever intertwined partners. May love and good will be with you forever.”
Jim kissed John. Paulette leaned forward and hugged them both. “You’re beautiful,” she said, weeping.
John responded: “Thank you. And thank you for including the word damn. . .”
Paulette and Jim were still smiling when the plane took off for home just after eleven A.M. In Cincinnati, a small crowd waited on the tarmac with signs that read FINALLY: MR. AND MR. Jim could hear the cheers as soon as the hatch opened, and he grinned and ducked through a shower of white rice. “I’m overjoyed, in love, and so thankful,” he said.
When the paramedics lifted John’s gurney out of the plane, Jim leaned over and kissed him on the forehead. At forty-six, Jim was a married man with rice in his hair and a wedding ring on his finger, and he momentarily forgot about the disease that was killing his husband. He looked at John, who said, “I’m very proud to be an American and . . . to openly share my love for the record, and I feel like the luckiest guy in the world.”
For five days, married life was a blissful burst of words and phrases that John and Jim had never been able to use before.
“Good night, husband,” Jim said as he settled John into bed.
“Hey, husband,” John said in the morning. “I’m thirsty.”
Jim changed his Facebook status to: “Married to John Arthur.”
He opened a bottle of champagne when friends stopped by and slipped some into John’s sippy cup. “Some more, husband?” Jim said. The phrase shimmied off his tongue. There would never be a honeymoon, but after two decades of words that had always sounded imprecise—partner, better half, significant other—this was enough.
John would die a married man, and Jim would grieve a husband.
At a dinner party across town a few days after the wedding, Al Gerhardstein ran into an old friend, Barbara Cook, a lawyer who represented veterans with disabilities. Cook and her husband had lived for years near John and Jim when they owned the Big House and had cruised parts of Canada with them a year earlier, playing rowdy trivia contests in the ship’s bar as John piped in from his wheelchair.
Over dinner, Cook told Al and the group about the wedding, which had been posted on the Cincinnati Enquirer’s website and was gaining interest on the Internet. “You have to watch the video. It’s just so moving.”
“Wait a minute,” Al said. “They got married in Maryland and now they’re back in Ohio? Do they know the law?”
“I’m in tears over this and you’re talking about the law?” Cook said, poking fun at her friend.
“Right. Right,” Al answered, and then he slipped away. Cook found out later that he left the party, went straight home, and started researching case law.
To take on Ohio’s marriage recognition ban, Al needed three things: a precedent, a plaintiff, and a story.
He had found a precedent when the Supreme Court in Windsor declared a key section of the Defense of Marriage Act unconstitutional, forcing the federal government for the first time to recognize same-sex marriage and deliver all the benefits provided to heterosexual couples. Al had pored over the decision once, twice, wondering whether the ruling gave him an opening in Ohio. Why should states follow different rules than the federal government?
He met with Lisa Meeks, who had been one of a handful of openly gay lawyers in Cincinnati in the 1990s and had built a practice helping lesbian and gay couples with estate planning, domestic relations matters, and employment and housing issues. Later, Meeks started drawing up shared custody agreements for same-sex couples since Ohio only recognized the biological parent and deemed the other a legal stranger. In the case of an Ohio adoption, only one parent had legal status.
“There are more ramifications to not being allowed to marry than just not being allowed to marry,” Meeks told Al. “You can’t really create or protect your family. It’s more than just symbolic.”
Al nodded. “Let’s think about this.”
Five days after the Windsor ruling, Al e-mailed Meeks: Do you know couples who are married in another state but living here in Ohio?
Meeks said yes.
Six days after the ruling, Al e-mailed: If a same-sex couple from a state where same-sex marriage is legal adopts a child in that state and moves to Ohio, does Ohio recognize both of them as parents?
Meeks said no.
Sixteen days after the ruling, Al e-mailed again. Do you know of differences in legal age or anything else that Ohio ignores when heterosexual couples arrive in Ohio, already married?
Al and his law clerks quickly researched state policy, finding that Ohio had long banned first cousins and minors from marrying but would recognize such marriages when they had been performed legally in other states. That wasn’t the case for same-sex couples.
Seventeen days after the Windsor ruling, Al learned about Jim Obergefell and John Arthur, who had traveled all the way to Maryland to marry even though John was bedridden.
Al e-mailed his law partner, Jennifer Branch, to explore whether they had a basis for an injunction—an injury so great that the court would need to act immediately to avoid “irreparable harm.” He wrote: When a same-sex partner dies in Ohio, I assume the box on the death certificate for marital status is checked, “never married,” and the name of the surviving spouse is blank, right? Isn’t that irreparable harm that your legacy, your family, will not be noted ever in Ohio?
Across town, Barbara Cook reached out to Jim. She e-mailed: A coincidental bit of timing: a civil rights lawyer friend of mine . . . thinks that a lawsuit is the only way the ban on gay marriage will go away here.
Cook wasn’t sure if Jim would be interested in a lawsuit since he was newly married and busy caring for a dying husband. But nine minutes later, Jim responded: I want to do what I can.
Cook replied: So, Al, meet Jim; and Jim, meet Al.
Al had his precedent, his plaintiffs, and his story, and just before he filed suit in federal court, three days after meeting Jim and John, twenty-three days after the Supreme Court’s Windsor decision, and fifteen years after the devastating defeat on Issue 3, he went home and called his daughter Jessica, who was about to start law school at the University of Michigan.
Jessica liked to tell the young men she dated, “My dad is the best person on earth.” But she also knew her father could be impatient, hard-charging, and anxious about the prospect of disappointing his clients.
“I don’t know if I should do this,” Al told his daughter.
It was clear to Al that Cincinnati was changing. The city had hate-crime and anti-discrimination laws and, two years earlier, the first openly gay person was elected to city council. Twenty-three candidates had competed for nine seats, but at age thirty-one, Chris Seelbach had secured enough votes to win the last spot. Though Chris had spent years struggling to help his parents understand that he was gay, his father on Election Day had held a sign in front of a busy northwest precinct that read PLEASE SUPPORT MY SON.
Late that afternoon, an angry man had approached him and quipped, “The last thing I need is a queer city council member.” Steve Seelbach, with a linebacker’s build, chased the man back to his car.
But beyond the borders of Hamilton County, Al knew that antigay sentiment still ran strong, with polls showing that about 40 percent of Ohio supported the state’s nine-year-old ban on same-sex marriage.
“I feel like I’m cursed on these issues,” Al told Jessica.
“No,” Jessica urged. “Do this.”