IT WASN’T exactly an enviable job, challenging a dying man, but Bridget Coontz was an expert at constitutional law and had been dispatched by the Ohio attorney general to defend the state against the lawsuit filed by John Arthur and Jim Obergefell.
She was only three months into her new position at the attorney general’s office, charged with supervising fourteen attorneys who represented the governor and state agencies when lawsuits were filed against them. On Friday, July 19, 2013, Coontz’s supervisor had hurried over to her office and said, “Al Gerhardstein filed a request for an emergency injunction. Same-sex marriage in the context of death certificates.”
With a degree from Rutgers School of Law, Coontz had sued the slumlords of Columbus, Ohio, for letting their buildings rot without basic maintenance. She had trained state highway troopers on the proper way to conduct searches and seizures and attorneys on the laws of free speech. But she knew that no other assignment would draw more attention than a case on same-sex marriage.
She looked at her anxious boss and said, “I’ll take it.”
It was already four P.M., which meant she had just over two days to prepare for the emergency hearing that Judge Timothy Black had scheduled for the following Monday. Her weekend was packed with family activities with her husband, a police officer, and her seven-month-old twins and four-year-old daughter. But the bigger problem was more philosophical than practical: Coontz supported same-sex marriage.
She had friends who were gay and saw no compelling reason why they shouldn’t have the right to marry. Now, as the counsel of record in a lawsuit against the State of Ohio, she would have to walk into federal court and defend the way the state would handle the last record of a gay man’s life. More than once over the weekend, she thought about introducing herself on Monday morning by saying, “Bridget Coontz on behalf of the wrong side of this courtroom.”
But she knew the attorney general believed in the “duty to defend” laws that had been passed by Ohio voters, and she was grateful when she learned that the state would argue only for the democratic process—not against gays. Though the attorney general had said publicly that he personally opposed same-sex marriage, no psychologists would be called in to discuss the attributes of traditional marriage or whether gay couples made suitable parents.
“We are not going to crazy town,” she and her colleagues said more than once. “Our arguments are strictly legal.”
Early Monday morning, she kissed her husband and children, ran a brush through her orange hair, and put on a suit. I can defend my client, she thought, but still control the message. She would argue that there was no need for an emergency order because the court could always require that John Arthur’s death certificate be changed later, after the judge held a final hearing on the matter.
Sitting in court, she listened to Al Gerhardstein plead for an emergency order and watched Jim Obergefell take the witness stand to read a statement about his marriage to John. Glancing at Al and Jim at the plaintiff’s table across the room, the assistant attorney general stood up and said, “This is a sympathetic case and it’s a hard one.”
“. . . Now, plaintiffs are before this court asking it to effectively, but only temporarily, do something that no other federal court has done in an overnight, temporary restraining order, and that is strike down a state statute and constitutional provision, which defines marriage as a union between a man and a woman.”
Judge Black was silent. “Perhaps the most important factor in this case is the lack of irreparable harm,” she continued. “. . . By statute, a death certificate can be changed; therefore, the harm that plaintiffs allege, an omission on the death certificate, an omission related to marital information, is, by statute, reparable.”
Judge Black cut in a moment later. “What if the plaintiff dies in the meantime?”
“I’m sorry?”
“What if the plaintiff dies in the meantime and then we go back and fix the death certificate, if that’s what the law requires. Has not that dead plaintiff suffered irreparable harm?”
“The harm being that the plaintiff died with the death certificate that did not reflect their marriage?” Coontz asked.
“Correct,” the judge replied.
“Your Honor, in that situation, it’s the knowledge that we’re talking about. The plaintiff is going to—if he passes away—” she started.
Again, the judge interjected. “He’s going to pass away.”
“When he passes away,” Coontz continued, “he’s not going to know what his death certificate says. Unfortunately, nobody does. Nobody dies with the knowledge of what their death certificate says. And if, ultimately, a death certificate is incorrect, Ohio law carves out a way to fix it.”
She pressed on. “. . . The balance of harm in this situation weighs in favor of, once again, slowing this case down. While we understand that there’s the possibility that the plaintiff could die in the meantime, what we’re talking about is the recognition of one marriage. . . .”
My marriage, Jim thought.
A few minutes later, Coontz sat down. She had made her case, defended her client. It was done.
Judge Black called on the last lawyer at the hearing, the deputy solicitor for the City of Cincinnati, who had come to court because the local health department, charged with finalizing death certificates, had been named a defendant in the case. The city, in every sense, was caught in the middle, compelled to comply with Ohio law, which banned the recognition of same-sex marriage, even though Al Gehardstein was alleging the law was unconstitutional.
Before the hearing, top city officials had come to a decision about how they would to respond to the lawsuit. Now, city attorney Aaron Herzig stood up, looked at Judge Black, and said, “I think the actions of the City of Cincinnati, over the last decade or so, indicate that the city is very sympathetic to the idea that Ohio should be a place where same-sex marriage is permitted.”
“The City of Cincinnati takes the position in this litigation that it will not defend the propriety of the same-sex marriage ban in Ohio?” the judge asked.
“That’s correct, Your Honor,” Herzig replied.
Jim’s hands started shaking again. John had once taken an urban planning class at the University of Cincinnati, studying the decline of American cities, and had promptly vowed to never move outside Cincinnati’s city limits. He had collected artwork from Cincinnati artists, supported Cincinnati charities, bought houses in Cincinnati neighborhoods. Listening to Aaron Herzig break ranks with the state, Jim silently thanked John. Damn, Jim thought. Cincinnati is on our side.
Judge Black was looking at Al. “. . . If the court were to put on a temporary order, is not the state harmed when a single federal judge with the stroke of a pen puts on hold a democratically elected amendment to the Constitution?”
Al had prepared for this question. “Judge, this is how our system works. And the worst way to protect minority rights is to put them up for a vote.”
“The mere fact that voters establish law doesn’t make the law lawful?” Judge Black asked.
“No.”
“I will act today,” Judge Black said. “Give me the time to do what the evidence and the law requires.”
From her seat in the middle of the courtroom, John’s aunt Paulette thought about Al’s parting words. The worst way to protect minority rights is to put them up for a vote. Surely, Judge Black would see it that way, too. “I think I know which way he wants to go,” she told her husband, Mike, a retired Cincinnati lawyer, “but I don’t know how he ultimately has to judge it.”
Neither did Al, who had made it a habit over the years not to offer predictions about the outcome of a case. He had met Tim Black in the 1980s when the judge, then a practicing attorney, was on the board of Planned Parenthood during the protests and bombings. But that was nearly three decades ago. Since then, Tim Black had run for the municipal court, first as a Republican and subsequently as a Democrat, and on the federal bench, he was considered tough, professional, and precise. In the hallway outside the courtroom, Al told Jim, “We’ll just have to wait and see.”
Jim, Paulette, and Mike went back to the condominium to be with John, who was waiting for news about the hearing. “We don’t know how it’s going to go, but it’s going to happen today,” Paulette told her nephew.
John smiled from his hospital bed. “I hope so.”
Television crews were waiting on word of a decision at the courthouse. “If you want to go back,” Paulette told Jim, “we’ll sit with John.”
Jim took John’s hand. “No, I want to be right here.”
They waited.
Tim Black was the son of a Boston heart surgeon, but he had always leaned toward the law. His great-grandfather had spent twenty-six years as a trial court judge in Cincinnati and his uncle served on the Ohio Court of Appeals. “If you treat even the most desperate man with dignity and respect,” his uncle once told him, “he will accept your judgment.”
The sentiment had stuck with Black, who had made it a practice to ask law students, “What’s the most important trait in a judge?” He got the same answers nearly every time: fairness, wisdom, integrity. But the judge would cite Solomon, the ancient king of Israel, who spoke of a kind and understanding heart.
“When we study the biographies of our heroes,” the judge wrote, “we find that most of their lives was spent in quiet preparation, doing tiny decent things, until one historic moment catapulted them to center stage.”
After the hearing, three years into a lifetime appointment to the federal bench, he walked back down the hall to his office, thinking about the case of Jim Obergefell and John Arthur. The judge’s office was cool and quiet, filled with photos of the Caribbean islands he had visited on sailing trips with his family. He had been five when he started racing sailboats and in his teens when he started winning championships. In his early twenties, he started out on a yearlong journey to New Zealand with his wife and another couple. The wind and waves off the coast of the Bahamas had been terrifying, so strong that they ripped the boat’s main sail and flooded the pump, and the two couples spent the night desperately bailing water from the boat with buckets. They decided not to cross the Pacific and instead visited nearly every island in the Caribbean.
He planned to sail again that upcoming weekend at Cowan Lake State Park near Cincinnati. But now the judge had a decision to make, one that would surely draw attention from the media. He had read Al Gerhardstein’s complaint and the state’s response and couldn’t find a single good reason to deny John Arthur a death certificate that described him as a married man. Fundamental constitutional rights, he believed, could not be subject to the vote of the electorate.
The judge had already started drafting a preliminary ruling, starting with the words “This is not a complicated case.” Alone in his office, he made a few final revisions and turned in his decision at 5:01 P.M.
Minutes later, across town in Jim and John’s condominium, the phone rang. Jim was still sitting beside John, who had dozed off and on throughout the afternoon. Jim glanced briefly at Paulette and Mike, waiting expectantly on the other side of the bed.
“Hello?”
“Jim. It’s Al.”
Jim had known Al for less than a week but had already picked up on his lawyer’s habit of delivering news with controlled, measured words. The only place Jim saw emotion was in Al’s eyes, when Al had looked at John in the hospital bed or at Jim on the witness stand, describing what marriage had meant after disease had taken everything else.
“Jim,” Al said. “We won.”
Jim hung up the phone, breathing hard. Holy hell. We did it. He thought briefly about Edie Windsor and all the other same-sex marriage plaintiffs who had come before him, in states like Hawaii, California, Massachusetts, and Vermont, where lawyers and couples spent years fighting for the right to marry. Then he bent down to rouse John.
“I’m not sure what it was,” Jim said, “but it went our way.”
Paulette threw her hands in the air and grinned.