THE WAITING was misery. On the first day of 2015, after a second New Year’s Eve without John, minutes and hours passed in languid succession, and it seemed to Jim as if life had been stripped down to four elusive votes. The weekend came, then Monday and Tuesday, and still, no news.
The nine justices of the U.S. Supreme Court would meet privately to decide whether to hear one or all of the appeals or let the decision by the Sixth Circuit stand, upholding marriage bans in Ohio, Tennessee, Kentucky, and Michigan. For the case to move on, at least four Supreme Court justices had to agree to hear it.
Another day ended with no announcement, and then another week, and by the third Friday in January, Jim could think of little else. He took to Facebook: “It’s time for SCOTUS to accept cases and make marriage equality the fact everywhere. I’m tired of waiting.” He sat in front of his iPad all afternoon that chilly Friday, trading messages with Joe Vitale in New York and trolling the Internet for news from Washington. Just after three P.M., Vitale texted—finally, a decision—and on the Supreme Court’s website, Jim saw the most stunning words. Their petitions had been granted. The court had accepted the appeals from all four states and rolled them into one case.. After decades of incremental rulings, the court would consider making same-sex marriage legal in all fifty states.
“Advocates have called same-sex marriage the modern era’s most pressing civil rights issue, and the court’s action could mark the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence,” journalist Robert Barnes declared in the Washington Post that day.
Jim leapt off the couch, his heart pounding. E-mails were pouring in and his cell phone was buzzing, but he stopped to post another message: “Holy hell. I’m going to the U.S. Supreme Court! I miss you, John—this fight is in your honor and memory and as a thank you for almost 21 years of happiness. Going with my friends for their cases, too.”
He mentioned Joe Vitale and Rob Talmas, Greg Bourke and Michael De Leon, and Nicole and Pam Yorksmith, who added their own message: “Our family is beyond privileged to have the opportunity to be part of history.”
Because Al and his team had been first among the lawyers to file a petition with the Supreme Court, Jim would become the first named plaintiff in the newly consolidated case of Obergefell v. Hodges, his name, by virtue of timing, forever linked to the issue of marriage equality, along with that of Richard Hodges, the director of the Ohio Department of Health.
The justices would hear oral arguments in April with a decision expected by the end of the court’s session in June.
In Washington, the executive director of the Human Rights Campaign, the country’s largest gay rights advocacy group, had been following the case closely. He turned to Fred Sainz and said, “You need to go out to Cincinnati.” Sainz, with wide shoulders and a trim mustache and beard, was the son of Cuban exiles who had organized against Fidel Castro in the 1950s and then fled the country. They settled in bustling Miami, in up-and-coming neighborhoods with mom-and-pop cafés that served up vaca frita and shots of Cuban coffee. His mother worked at Woolworth’s and his father drove a cab before he got his insurance license and opened his own firm.
At twenty, Sainz landed a job in the George W. Bush White House, the youngest staffer in the West Wing, and went on to jobs running high-profile marketing campaigns. But he was estranged from his father, and by the time Sainz became the communications chief at the Human Rights Campaign in 2010, they hadn’t spoken in fifteen years.
If he couldn’t move his father, Sainz decided he could try to move others.
Just before the Windsor ruling, he had commandeered a conference room, pulled in twenty-five associates, and started thinking about a single image that would represent marriage equality. “Red is for love,” someone called out, and the team designed a red-and-pink equal sign that almost overnight went viral on Facebook and Twitter.
Now Sainz needed to meet Jim Obergefell, the named plaintiff in the case that would decide marriage equality, and figure out how Jim might fit into the national campaign. In February, Sainz flew to Cincinnati to meet Jim for breakfast in a hotel café just down the street from the federal courthouse, where Judge Timothy Black had ruled in favor of marriage recognition and the majority of judges on the Sixth Circuit panel had ruled against it.
Sainz ordered a turkey-sausage scramble and looked across the table at the pensive man who had made love and loss seem transcendent, not gay or straight but infinitely human. If Jim became the face of the case, potentially the most important in the history of the gay rights movement, could he withstand the public’s glare?
When Fred Sainz was a young boy, his mother once said: La gente muestra su temple cuando las cosas se ponen difíciles. People show their mettle when the going gets tough.
Sainz and Jim made small talk through breakfast, chatting about their backgrounds and the chances of a win at the Supreme Court. But over coffee afterward, Jim started telling his story, and in an instant, Sainz knew. Jim described his reaction to the Ohio death certificate during the first meeting with Al, as John lay dying in the bedroom. “It was going to say ‘single,’” Jim said. “Even for smart, well-rounded people, sometimes it takes a vivid detail like that to kind of switch the light on.”
Sainz immediately decided that they could work together to tell the American public about love and loss in gay families. He invited Jim to Washington to help with HRC’s newest campaign, this time to convince voters to sign their name to a “People’s Brief” that would be submitted in advance of oral arguments at the Supreme Court.
Back home at HRC headquarters, an eight-story building not far from the White House, Sainz went to work, setting up a website to solicit signatures for the brief. He had only a few days to try to bring in a wide swath of supporters, but in a matter of hours, voters from all fifty states signed their names to the brief. Sainz upped his goal to one hundred thousand signatures and then to two hundred thousand. By the time Jim came to Washington in early March, the brief had grown to 3,500 pages, with so many signatures that it had taken four days of round-the-clock printing to produce the fifty copies required by the Supreme Court.
On a frigid Friday morning, Sainz took Jim to the courthouse to deliver 175,000 pages, stacked in dozens of cardboard boxes. The brief had been written by Roberta Kaplan, a prominent New York civil rights lawyer who had represented Edie Windsor. “Ohio insists that there must be a blank space on Mr. Arthur’s death certificate where Mr. Obergefell’s name should be,” Kaplan wrote. “Not content to deny these men the equal protection of the law in life, it also seeks to deny them dignity even in death.”
Jim had woken up that morning feeling different. He had thought about his friend Nanci Vesio, who lost her forty-nine-year-old husband to cancer three months after John died.
“What did you do with all his stuff?” Vesio, a petite mother of two with gray hair and a wide smile, once asked Jim over lunch.
“I got rid of all the sick things first.” Jim had decided to paint and rearrange furniture.
“I’m overwhelmed,” Vesio said.
“I know. It’s okay. Take it day by day.”
“Are you lonely?”
“Yeah.”
“Does it get any better?”
“Not better,” Jim said. “Just different.”
On his way to deliver the People’s Brief with Fred Sainz, “different” wasn’t feeling all that awful. Grief still hovered in the shadows, clawed at his heart so intently that Jim sometimes lost his breath, but he was becoming part of something far larger than himself. Purpose kept the loneliness at bay, and when strangers recognized his face and stopped him to share their stories, Jim felt connected to a tapestry of lives that in some extraordinary way had collided with his own. He had spent his whole life as a private man, but he decided that John’s death had given him a public voice, a way to speak up for tens of thousands of gay couples and their families.
Jim had never been to the Supreme Court, and though the grounds were covered with snow, he gaped at the sixteen marble columns and an engraving on top that read EQUAL JUSTICE UNDER LAW. He climbed the shallow steps to the building’s wide oval plaza, passing flagpoles with bronze bases crested with images of the scales and sword, the book, the mask and torch, the pen and mace and the four elements: air, earth, fire, and water. Across the way, the U.S. Capitol building, with its massive white dome, shimmered in the winter sun.
Jim looked around, surveying a scene unlike anything he had thought about when he and John agreed to sue the State of Ohio less than two years earlier. The People’s Brief had been signed by 207,551 Americans, an astounding number, and when Jim walked to the doors on the far side of the building to deliver the documents, he wanted more than anything to tell John what they had accomplished.
The nine justices of the Supreme Court had boiled the case down to two questions: whether the Constitution required all fifty states to issue marriage licenses to people of the same sex and whether states with bans should be required to recognize marriages that were legally performed elsewhere.
For each question, only one lawyer could address the court. Al’s cases fit into question two.
Years earlier, when Al had an affirmative action case before the Sixth Circuit Court of Appeals, a judge he knew had pulled him aside at a civil rights conference. George Clifton Edwards Jr., nominated to the Sixth Circuit in 1963 by President John F. Kennedy, wasn’t involved in Al’s case, but he knew Al because Al’s law partner had once clerked for the judge.
“Is it going to the Supreme Court?” Judge Edwards asked Al.
“There’s a possibility.”
“Don’t let them take the argument away from you.”
“Why do you say that?”
“This is what happens,” said the judge, who in 1949 vied to become the mayor of Detroit but lost to another white man after pushing for the equal rights of African Americans. “You have a good lawyer and suddenly they get up to the Supreme Court and they think they can’t do it. Don’t let that happen.”
Al’s affirmative action case was never argued at the Supreme Court, but he had been handling his own appeals ever since, mostly because he wanted to keep his clients front and center in appellate debates that could turn dry and academic, focused on legal error rather than the lives of families whose rights were at stake. In all his years as a civil rights lawyer, Al had never appeared before the Supreme Court, and when the lawyers from Kentucky and Tennessee asked if he wanted that chance in Obergefell, Al quickly said, “Yes.”
It was a career-capping opportunity, but Al wanted to argue for his brother, who thirty years earlier had watched his partner take on the Catholic Diocese of Cleveland and lose, and for the gay community of Cincinnati, which had spent more than a decade living with a city charter that expressly prohibited anti-discrimination laws on the basis of sexual orientation. More than anything, he wanted to argue for John, Jim, and the other plaintiffs in his marriage recognition cases.
He also wanted to argue because he had been told that marriage recognition wasn’t the right battle to wage, and now the Supreme Court had decided that the question was important enough to ask it directly. Could marriages simply be dissolved at state lines? Al believed that single question had exposed the impracticality of marriage bans and the serious set of consequences for couples like the Yorksmiths and Jim Obergefell and John Arthur. His plaintiffs had shown the country how much their marriages had meant to them and how, by virtue of geography, their lives had been upended. Surely, Al thought, their stories would nudge the court toward full marriage equality.
Al was hoping his selection for question two would be made through an easy consensus, but the lawyers from Tennessee wanted Doug Hallward-Driemeier to argue instead.
The disagreement was unexpected and awkward: only one lawyer could argue, and two wanted the job. They decided to meet in Louisville at the end of March for another moot court, this time a friendly competition that would pit Al against Hallward-Driemeier, with the best presenter winning the job. It would be a confidential process watched only by the lawyers and the plaintiffs, who would be sworn to secrecy. A videotape of the arguments would be destroyed once the contest was done.
Al could have pushed back, arguing that a newcomer would be no match against a lawyer who had spent the better part of three decades pushing for the rights of the gay community. But he decided that a competitive process would identify the best presenter, and the best presenter would be in the strongest position to help his clients. “We’re coming from two very different perspectives and two very different backgrounds, and we should hear how it sounds when we’re put into it,” Al told his son, Adam.
Al drove to Louisville the day before the moot court, checked into a motel, and stood in front of a mirror, practicing his arguments for hours. The next morning, he walked alone into a conference room on loan from the Louisville Bar Association, his binder tucked into his briefcase. About a hundred people were already there, including Adam, Al’s law partner Jennifer Branch, James Esseks from the ACLU, and the lawyers from Tennessee and Kentucky. Jim, Pam and Nicole Yorksmith, and Joe Vitale, who had driven together from Cincinnati, sat near the back of the room.
Hallward-Driemeier and Al flipped a coin to see who would appear first before a panel of three lawyers who would act as Supreme Court justices and then choose an oralist. Al was impressed with the panel, which included Mary Bonauto, the civil rights project director for the Gay & Lesbian Advocates & Defenders, who had helped bring same-sex marriage to Massachusetts and other states.
Al would go first. Hallward-Driemeier left the room and Al began to talk about why marriage recognition bans harmed gay couples from birth to death. The judges interrupted seconds into his twenty-five-minute pitch. Where did the right to marry come from? Why not let the democratic process decide? If you lose on question one—whether there was a constitutional right to marry in all fifty states—don’t you also lose on marriage recognition?
Al had expected questions, but about halfway through the argument, he began to feel winded and off track. He worried that he was losing focus and the chance to turn the conversation back to his plaintiffs and their stories. Some of the questions seemed arcane, others too academic. From her seat in the audience, Branch thought it was the hottest bench of judges she had ever seen, flinging questions and often intervening before Al could complete a thought. She was quick to speak up when the panel asked the audience which lawyer did a better job. “Al knows the case,” she said. “Al knows the clients.”
“He’s a mensch,” Joe Vitale said, using the Yiddish word for a person of honor. Vitale described Al’s frequent phone calls to check in on Cooper, the youngest plaintiff in the case. Was he walking? Was he talking? Did he still like toy cars and Frozen?
Jim stood up and said, “Al has earned this. He’s been fighting for civil rights for thirty years. He started this case and he deserves it.”
“He brought this case,” Pam Yorksmith pressed. “He got us here. He should be the one arguing.”
Al didn’t hear the comments. He was in another room with Hallward-Driemeier watching the video of both arguments. Al thought the other lawyer appeared clear and authoritative, and Al stepped forward when he and Hallward-Driemeier went to see the three judges. “I’ve got to call this as I see it,” Al said. “Doug did a better job.”
Al conceded before a vote.
He went to talk to the lawyers waiting in the next room. “I appreciate everybody being here. Based on all the considerations, I think it’s best if Doug argues, and he’s agreed to do that. I’ll remain involved as a member of the team that helps him prepare for this.”
But Al was deeply disappointed. He thought about his daughter, Jessica, once a competitive figure skater who practiced for hours for those few critical moments in front of the judges. Sometimes, Al knew, she just missed her jumps.
Al wandered into a brewery with Adam after the moot court, too anxious to drive home to Cincinnati. They settled on a table outside, ordered beers, and watched the Louisville business district shut down for the day. Al was still in the throes of his argument, replaying the questions and answers in his head. Adam had seen it many times before, his father after a day in court, glassy-eyed and distant.
“If I had a couple more days,” Al said absently, “I would have been in a different place.”
“I was very impressed.”
“I don’t think I did as well as Doug. He’ll do a good job.”
Adam was touched by his father’s humility. “All of our clients said they trusted you and, in fact, they love you.”
At home in Cincinnati, Mimi told Al, “You know you did what’s best for your clients.”
Tennessee attorney Regina Lambert had missed the moot court because her father was sick, but she heard about Al’s concession from one of her cocounsels. “He may never have this opportunity again,” Lambert said.
Five days later, she sent Al a note.
Every single step of the case, from talking with potential plaintiffs to filing a merits brief with the Supremes, has been one amazing learning and growing experience. This 51-year-old lesbian has been forever changed by all.
And yet, you are the one who I cannot get out of my mind for days now. And so, please allow me to tell you: You are a wonderful man, a talented advocate and a gracious team member. You are an inspiration, a mentor and a hero to me. Thank you, Al.
On the Sunday before oral arguments at the Supreme Court, Al went to church.
He knew that the case had galvanized hundreds of thousands of supporters, including groups that had hired their own attorneys to write legal briefs backing the plaintiffs. One had come from 379 employers, including Apple, AT&T, Barnes & Noble, the Coca-Cola Company. “Our successes,” the brief read, “depend upon the welfare and morale of all employees, without distinction.”
Psychologists, law-enforcement officers, and first responders had weighed in, along with the Anti-Defamation League and the National Association for the Advancement of Colored People. Public officials stepped out by the hundreds, including 211 members of the U.S. House and Senate and 226 U.S. mayors.
The most notable backer was the U.S. government and President Barack Obama, who emphasized in a brief penned by the U.S. solicitor general, “States have burdened petitioners in every aspect of life that marriage touches.”
But the opposition was fierce and organized, led by religious groups and a long list of states—Louisiana, Utah, Texas, Alaska, Arizona, Arkansas, Georgia, Idaho, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, West Virginia, South Carolina, and Alabama.
Al had been helping Hallward-Driemeier prepare for oral arguments and had traveled to Nashville and Washington, D.C., for more moot-court sessions. Lawyer Mary Bonauto was also there, since the Gay & Lesbian Advocates & Defenders was working with the Michigan lawyers and Bonauto had been selected to argue question one—whether same-sex marriage should be legal nationwide. Al thought it was a strong, strategic choice. Bonauto was a gay rights pioneer and had worked with Evan Wolfson and others early on to craft the framework for a national marriage road map.
But Al knew that law could be fickle and that decisions could turn sideways even in the face of the most compelling arguments. He had always found a certain comfort in the Sunday worship service at the First Unitarian Church in Cincinnati, with its wood beams and stained-glass window with a picture of the Figure of Truth. Before the congregation that Sunday, Minister Sharon Dittmar presented Al with a gift basket for his journey to the Supreme Court—a flashlight to navigate darkness, contact-lens solution for clarity, scissors to cut through “injustice.”
She asked Al to say a few words, and he stood before the group.
“I’ve been here before and it’s scary,” he said, thinking back to Issue 3. “In our city, no law could be passed and no board, no entity, could protect gays from discrimination. I thought, ‘Wow. That doesn’t seem fair. How can we carve out gay people and not protect them?’ So we sued. We went to the Sixth Circuit and we lost. Cincinnati became this permanent island of intolerance.”
Bith certificate plaintiffs Kelly Noe and Kelly McCracken had come with Al to church, and he looked over at the couple, married in Massachusetts but considered single in Ohio. They held their infant daughter, Ruby. “There is no, in my view, legitimate state interest in harming Ruby and the millions of children like Ruby,” Al said. “I’m hopeful that the Supreme Court will see that, but I’m not sure because, like I said, we’ve been there. With children on the line, a lot of harm can be done, and that is a scary thought.
“That is why your prayers are welcome.”