DAVID MICHENER hadn’t heard of the federal court ruling the night his husband was rushed into emergency surgery to stop a bacterial infection that had mauled the right half of his heart. It could have been a paper cut, the doctors said, that caused the infection that caused the fever, sending fifty-four-year-old Bill Ives into intensive care with a failing aortic valve in late August 2013.
Still, Michener fully expected his husband to survive, in part because he had to. The adoption papers had come earlier that day, and three-year-old Michael, who had faced a childhood in foster care, was now officially their son. The toddler and the couple’s two older children were waiting at home in a ranch house in the historic Cincinnati neighborhood of Wyoming, known for its top schools and panoramic views of the city. Michener, broad-shouldered and a good head taller than his husband, was a business analyst who liked to pen poetry. He could sit out back for hours, watching deer and cardinals dart between the trees.
Michener and Ives were newlyweds, married just five weeks earlier at their beach house in Delaware. But they had spent nineteen years together in the suburbs of Philadelphia, living a rather ordinary life that started with a commitment ceremony, then a house, then plans for a family. They had raced to New Orleans to pick up their adopted daughter, Anna, a two-pound preemie whom Ives was afraid to hold until Michener coaxed him into it, then went back two years later to get Jack, born during a hailstorm that shut down the highways of Baton Rouge. The couple commandeered a police escort to get to the hospital.
In 2008, they moved to Cincinnati so Ives could take a corporate job at Macy’s, but nearly turned back when they crossed into Ohio, where billboards delivered word of the Bible. “We made a mistake,” Ives said in a panic. “We’re in God’s country.”
“Relax,” Michener said. “We’ve always lived an out life.”
In Pennsylvania, they had taken the kinds of precautions common among unmarried gay partners with adopted children, drawing up parenting agreements and wills. Married couples had automatic rights, but unmarried gay couples had been refused access to their dying partners, inheritances, and nonbiological children. In Ohio, the couple would hire attorneys Lisa Meeks and Scott Knox to draw up more paperwork, including a joint custody agreement that had become a fallback for gay couples in a state that refused to allow same-sex parents to jointly adopt children.
Michener decided to stop working to stay home with Anna and Jack, juggling gymnastics, tennis, and martial arts competitions. Then, at a family meeting in early 2012, they decided to adopt Michael, an African American toddler who clung to his new fathers when the social worker brought him over for his first stay with the family.
In July 2013, when Al and Jim were talking about a lawsuit, Ives and Michener traveled to Delaware, the eleventh state to allow gay couples to marry, and exchanged wedding vows in front of their children. But Ives was nursing a 104-degree fever, and though he believed it was a lingering flu, they drove home the next day for medical tests. He was admitted to the hospital for three weeks of intensive antibiotic treatments.
“If anything were to happen, this is what you have to do,” Ives said from his hospital bed, describing their estate, their wills, and the calls that would need to be made to lawyers.
“Just shut up,” Michener replied. “You’re not going anywhere.”
But Ives didn’t get better, and on August 24, just after Michener dropped his children at the bus stop, Ives was rushed into surgery. Michener drove straight to the hospital, thinking about how his husband had laughed from the hospital bathroom just two days earlier. “Oh my God,” Ives had said, looking at his gray hair in the mirror. “Look how f’ing old I got in the last two weeks.”
Michener, with the same receding hairline, shot back, “You’re still the handsome man I fell in love with.”
While Ives was in surgery, Michener paced for hours in the hospital waiting room, stopping only to call home to check on their kids. The idea of losing his spouse after nineteen years and three children was unfathomable. Ives had always been more of the leader of the family, with a commanding presence that had given Michener great comfort. Now their entire world had been upended, their plans to retire to the beaches of Delaware threatened by the absurdity of a bad paper cut.
Finally, a doctor had news. Two teams of surgeons were trying to reconstruct Ives’s heart, which was riddled with bacteria, but the odds weren’t good. Twice he had nearly died on the table. The doctors could induce a coma to allow his heart to rest before more surgery, but it was a risky procedure of last resort.
“Absolutely. Do it,” Michener insisted. “I want him to live.”
Somewhere in all their paperwork, they had both made clear they didn’t want extensive, life-saving provisions, but in that moment, with three children waiting at home, Michener could think only about saving his husband. In intensive care after eighteen hours of surgery, doctors gave Ives emergency blood transfusions and dialysis for his kidneys. But on the fourth day, the cardiologist called.
“There’s been no improvement,” the doctor said over the phone while Michener was running their son Jack to the pet store for tropical fish. “Nothing is coming up right.”
Michener turned to Jack, who had just celebrated his eleventh birthday. “I’m going to be honest with you,” he said, fighting to keep his voice calm. “I don’t think Daddy Bill’s coming home.”
Ives stopped breathing at three A.M. the next morning, just after Michener crawled beside him in the hospital bed. Michener whispered in his husband’s ear, “I understand. We had a great life, and everyone loves you.”
The nurse knelt down, listened for a heartbeat, and shook her head. Michener draped his arms across his husband’s body. “I’ll see you on the other side,” he said.
Three hundred people came to the funeral, but Michener barely saw their faces. More than anything, he wanted to sit in a quiet room somewhere and grieve, but his children were grieving, too, and for now, that would come first. When the funeral director motioned toward an empty corner of the room, Michener walked over, distracted.
“There’s a problem with the death certificate,” she said.
Ives had wanted to be cremated, but without a death certificate that listed Michener as the surviving spouse, there was no one to authorize the cremation. Ives’s body was in legal limbo. The thought sickened Michener, who went straight home, closed the door to the office so his children wouldn’t see, and put his head in his hands.
Later that day, an administrator with the city’s health department called attorney Scott Knox about the death certificate. Knox called Al, and two days later, Al went to court to ask Judge Black about expanding the ruling to include Bill Ives. The judge agreed.
With a court order, Michener went straight to the funeral home, terrified that the state would try to appeal and block the cremation. As he watched the casket creep toward the furnace, the whole situation seemed ludicrous and surreal, his husband’s sudden death, the delay over the death certificate after years of careful planning, the federal court order. Michener looked around the room, half expecting his husband to jump out from behind the door so they could pick up life where they had left off, an intact family of five.
A month later in September, Michener decided to run a five-kilometer race in his husband’s name at the Wright-Patterson Air Force Base in Dayton. Just before the race began, his cell phone rang.
“You have a choice,” Al Gerhardstein said. “You can go on and live your life or you can join this lawsuit.”
Michener had no interest in any lawsuit, but he thought of Daddy Bill. “Keep me on it,” he told Al.
And then he ran and ran.
In the gloomy last days of fall, John Arthur lay dying. The finality of it was everywhere, in the wheezing sounds that John made when he breathed, in the humming of the machines secured to the hospital bed. Paulette was there nearly every day, wanting to stroke John’s head or straighten his glasses but worried that even the gentlest movement would aggravate her nephew’s nerve endings. On a visit in early October, she pointed to one of the monitors by the bed. It read 100.2.
“Does he have high blood pressure?” she asked Jim.
Jim shook his head. “No, that’s his weight now.”
A few days later, she sat with John again and whispered, “I love you.” John’s eyes were fixed on her face, and though his lips moved slowly, he couldn’t get out any words. Paulette said, “I know.”
John’s cousin Keith came by to watch game shows until John drifted off. Curtis Arthur drove in from Toronto, cracking jokes to make his brother smile and waving Jim out of the room to give him a break. A few months earlier, just before John had lost the ability to talk, he looked over at Curtis and said, “It’s going to be okay.”
“Yeah, I know,” Curtis said simply, and left it at that.
On October 21, when President Barack Obama was talking about the Affordable Care Act and the Boston Red Sox were preparing to play the St. Louis Cardinals in the World Series, Jim sat by John’s bedside, reading from chapter eight of John’s favorite Clive Barker fantasy novel about the secret existence of a parallel world in Liverpool, England. Immacolata felt a twinge of trepidation. Not because of the man who emerged from the shelter of the column, but because of the company he kept. They moved in the shadows behind him, their panting flanks silken. Lions! He’d come with lions.
Jim was exhausted and took a break to use the bathroom. He had requested family medical leave to be with John full-time, believing that now that he was married, he qualified for the benefit, which would guarantee his job when he returned to work. But his supervisor had denied the request. “Ohio doesn’t recognize your marriage,” he told Jim.
“What about professional leave?” Jim asked. “Is my job guaranteed then?”
“No. But it’s our intent that you’ll have a position to come back to.”
“So you’re telling me that you’re not guaranteeing my job?” Jim said.
There would be no guarantees. The lack of protection was unsettling but Jim left anyway, drawing on their savings to pay the bills.
From behind the bathroom door, Jim heard John’s bell ring. Though he was in the final stages of ALS, John could still twist his head slightly to the right, triggering a sensor on the pillow to call for help.
“What?” Jim shouted the word, a single moment of exasperation that he instantly regretted. But he was in a world of pain, utterly drained and terrified of what would come next, what death would look and feel and smell like, and how the world would change when John was gone. Jim rushed back into the bedroom. John was mouthing words, but for the first time since his rapid decline to paralysis, Jim couldn’t understand.
Jim picked up the phone and called Curtis. “I’m failing him,” he sobbed. “I don’t know what he needs.”
Jim called hospice. “Please, please send someone over now.”
Jim went back to John, watching his mouth and tongue rise and fall, as if in slow motion. His eyes were desperate. In-hal-er. Jim seized the asthma inhaler on the nightstand and pressed it to John’s mouth. Breathe, goddammit, Jim thought. Slowly, John’s shoulders relaxed and he closed his eyes. Jim leaned over, his heart pounding, and whispered, “I’m sorry for being an ass.”
The hospice nurse came in a few minutes later. “He looks peaceful,” she told Jim, and urged him to get some rest. Jim brushed his hand along the side of John’s face. “Please wake me if something changes,” he said quietly.
In the guest room, Jim tossed and turned in the darkness and wasn’t surprised when he heard a soft knock on the door long after midnight. “It’s the end,” the nurse said.
ALS had been a savage disease, but death came peacefully to John, and for that, Jim was grateful. John’s breathing became shallow, and then it simply stopped. The nurse pulled the oxygen tube from John’s nose and looked at Jim. “He’s gone now.”
Jim called Curtis, Adrienne Cowden, Meb Wolfe. Only two and a half years ago, Jim thought in a stupor, he had made the same series of calls to tell their family and friends that John had been diagnosed with a terminal illness. Sometime in the night, funeral home technicians came in with a body bag, but Jim couldn’t stand to watch. Already their condominium felt vast and empty, with every corner crammed with a memory, a painting they had bought together, the table where they’d eaten, the couch they had shared.
Friends came over through the night and into the early morning, huddling in the kitchen and living room. Meb Wolfe embraced Jim, who whispered in her ear, “I don’t know how to go on. I don’t know what to do.”
“John would not want you to stop living,” she said.
When Paulette arrived just before noon, she found Jim sitting alone in a chair by John’s empty hospital bed. He had sat in that chair every day and night for months, helping John eat or move, playing music, changing the bedpan. Jim looked small and confused, with hunched shoulders and tired eyes.
Paulette fell back against her husband. “Oh my God,” she said, “Jim’s still in there.”
Barbara Cook, who had first told Al about John and Jim, e-mailed early that morning. “Al, you may have already heard this, but I learned this A.M. that John died.”
Al responded, “Jim let me know. Thanks for connecting us. They are a beautiful couple.”
“They are indeed,” Cook wrote. “I told Jim last week that you loved them both.”
Al got to work. He e-mailed Aaron Herzig, the lawyer for the City of Cincinnati. “Please be advised that plaintiff John Arthur has died. He was a kind and loving man. Plaintiff James Obergefell . . . will be seeking a death certificate consistent with the orders of the court.”
He e-mailed the funeral director, Robert Grunn: “Please apply for John’s death certificate consistent with the attached court order listing John as ‘married’ and James as his ‘surviving spouse.’ I have alerted the defendants that you will be doing so. Thank you for your service to this loving couple.”
Al updated the law firm’s website. In Memoriam: John Arthur. Even as John faced his last days, he was fighting for the rights of all same-sex couples. Part of John’s legacy will be the difference he has already made in the struggle for marriage equality. Thank you John for your courage and love.
Word of John’s death spread quickly. The Cincinnati Enquirer posted on its website, “John Arthur, who challenged same-sex marriage ban, has died.” The Associated Press wrote a story, which was picked up by the Huffington Post and Yahoo! News. Friends shared pictures: ten-year-old John on his way to a rafting trip with his cousin, Keith; forty-one-year-old John drinking a beer in Vancouver for Jim’s birthday.
Jim put up his own Facebook message two days later: “On December 31, 1992, I made the best decision of my life—going to a party at John Arthur’s house because his roommate invited me. I never left. 20 years, 9 months and 22 days wasn’t nearly enough time with the man who taught me what it means to love, laugh, be generous, show kindness, appreciate every day and find the fun in everything that happens. He left the world a better place than he found it.”
Staying with friends during those first few days, Jim busied himself with the business of death. Robert Grunn, the funeral home director, called to ask about John’s death certificate. “How many do you want?”
Judge Black’s court order in July had only been temporary, and a full-blown hearing was planned for December. Jim was terrified that Ohio might change the death certificate if Judge Black or some higher court ultimately ruled in the state’s favor, so he blurted out, “I want twenty—or as many as I can get.”
Jim went to the funeral home to pick up John’s ashes and then contacted a jeweler about fusing his wedding ring with John’s. Jim would put some of John’s ashes inside a small channel cut inside the ring, and one day he would release the rest into the Gulf Stream. John had asked Jim to release his mother’s ashes at the same time so that, in death, they could travel the world together.
John never wanted a funeral, so Jim planned a party. At a local art gallery, he served John’s favorite fried chicken and donuts and a menu of John’s drinks—Collegiate John (gin and tonic) and Grown Up John (bourbon Manhattan). He put a cardboard box with John’s ashes on the bar, and on top stuck a green felt hat that they had picked up years earlier at a Christmas market in Budapest. A friend also put a name tag on the box that read HI, MY NAME IS JOHN.
But after nearly twenty-one years, everything familiar suddenly seemed strange—the tables they had frequented in their favorite restaurants, the grocery store up the street, even their condominium. Jim left town. He would travel to Germany, Iceland, Los Angeles, Wisconsin, New York, Oregon, Anchorage, and Illinois, where he would try to lose himself in a neighborhood of homes designed by Frank Lloyd Wright. But everywhere he went, John came with him, which is why the last thing Jim said at night before he drifted into a dark, restless slumber was, “Good night, John.”
Judge Black’s groundbreaking ruling in July had made national news, but the decision had only affected the death certificates of two men: John Arthur and Bill Ives. Al wanted to secure accurate death certificates for the rest of the gay community in Ohio, broadening the case and setting significant legal precedent. To do that, he needed Robert Grunn.
The funeral home director with spiked salt-and-pepper hair and pointy brown glasses was a well-known fixture in Cincinnati’s gay community, hosting funerals in a building in the city’s business district that had once housed a gay-friendly bar. For a funeral home, it was a pretty place, filled with red leather couches and local artwork, samples of urns discreetly displayed on wooden bookshelves along the brick walls. Grunn had cared for the dead for twenty-five years and hated telling gay clients that they couldn’t be named on their partners’ death certificates or even included in funeral plans if the parents of the deceased objected.
If Grunn became Al’s third plaintiff, it would clear the way for a ruling that allowed all funeral home directors in Ohio to issue death certificates acknowledging out-of-state marriages among gay couples, giving spouses the right, among other things, to make burial and estate decisions.
But the state vigorously objected to any expansion of the case, and eight days after John Arthur’s death, Judge Black called for a hearing to sort through the matter.
“Good afternoon, Judge. Al Gerhardstein for the plaintiff,” Al said in the same courtroom where he had initially presented the case. “And with me is James Obergefell and Robert Grunn, who are plaintiffs.”
“I would say this to anyone in any civil case,” Judge Black said a moment later, looking directly at Jim. “Mr. Obergefell, on behalf of the Court and the community, I express my condolences upon your loss.”
Jim blinked back tears and mouthed, “Thank you.”
Before the hearing, Al had submitted a legal brief arguing that funeral home directors, who faced criminal penalties for making false statements on death certificates, needed clarification on whether to follow Ohio’s marriage recognition ban or Judge Black’s recent orders concerning John Arthur and Bill Ives.
The state wanted Grunn dismissed as a plaintiff, arguing that he didn’t have a direct tie to the case and hadn’t suffered any harm. Assistant Attorney General Bridget Coontz stood up and told the judge, “Mr. Grunn does not allege that he has a close relationship with anyone whose rights he’s trying to vindicate. . . .”
“Who better to raise this issue as to the death certificate of the same-sex couple than a funeral home director who services, in large part, the gay community?” Judge Black asked.
“The individual plaintiffs who are applying for the death certificate,” Coontz replied.
“So you do it one by one?” the judge asked. “As people die, they rush into court within twenty-four hours?”
The hearing ended quickly, and two days later, Judge Black issued another ruling, his most crucial one yet. “As fully anticipated by all parties,” Judge Black wrote, “Plaintiff John Arthur died very recently on October 22, 2013. The question now arises whether this lawsuit dies with him.”
The answer, the judge decided, was no. Al would get to keep Grunn as a plaintiff, broadening the case against the State of Ohio. At a final hearing in December, Judge Black would decide whether the marriages of gay couples across Ohio deserved recognition in death, just as he did for Bill Ives and John Arthur.