By Sarah B. Boxer
“What we're asking for is simply to be part of that same tradition of marriage where two people commit to each other and make those promises to love, protect and honor each other. How are we changing that? How are we harming that? We're just asking to do the same thing.”
Jim Obergefell is fired up. He’s the lead plaintiff in a case before the Supreme Court that this month could change gay rights in America forever. And in an exclusive interview with Yahoo global news anchor Katie Couric, he explains why.
“It's scary to think about having the highest court in the land rule that you really are a second-class citizen and you don't deserve the same rights, the same protections, the same responsibilities as other people.”
His case, Obergefell v. Hodges, rests on two questions. One is whether the Constitution requires a state where same-sex marriage is not legal to recognize a marriage licensed in a state where it is legal.
The other question is whether the Constitution requires states to license marriages between two people of the same sex — in other words, whether same-sex marriage should be legal nationwide.
In 1992, Obergefell met a man named John Arthur — twice — through friends. On neither occasion did the men acknowledge their attraction to each other.
But, at a New Year’s Eve celebration that year, the third time was a charm.
“I went to a party, and I never left,” Obergefell says.
The two were inseparable for the next 20 years. They worked in IT consulting at four companies together and built a vast network of family and friends in their hometown of Cincinnati, Ohio. On weekends, they shopped at eclectic art galleries and supported local artists. Over Christmas, they gleefully decorated their yard with tacky trinkets. During the school year, foreign exchange students stayed in their home and became like their children.
“They were fantastic,” says Jim’s older brother, Bob Obergefell. “They brought such a vibrant life and atmosphere to almost everything that they did.”
Despite their decades-long relationship, the couple had never seriously considered marriage until June 2013, when two major events changed their lives. The first was Edie Windsor winning her case before the Supreme Court — thereby forcing the federal government to recognize same-sex marriages in states where they were performed legally. The second factor was Arthur’s declining health.
In early 2011, Obergefell had noticed a change in how his partner was walking — one leg seemed to slap abnormally. By spring, the problem could no longer be ignored, and Arthur learned his diagnosis: He had ALS, an incurable neurological disease.
Over the next two years, Arthur’s motor and speech skills slowed considerably. By the time the couple decided to wed, he had lost the ability to walk or speak more than a few words at a time. And, adding to the complications of getting to the altar, same-sex marriage was illegal in Ohio.
“In a perfect world, I could've put John in his wheelchair and taken him six blocks to our county courthouse to get our marriage license and then marry in the comfort, safety or our home,” says Obergefell. “But unfortunately we didn't have that luxury.”
Mary Arnett, Arthur’s hospice nurse, wasn’t sure if the couple could pull it off. “Because John was so sick, I wondered how they were going to do it,” she recalls. “But… but they did, you know? Where there's a will, there's a way. And they both had the will.”
Obergefell found out that in Maryland, a state where same-sex marriage was legal, only one party needed to be present to obtain a marriage license. So he traveled there, secured a license, and returned home to collect Arthur to make a return trip to the state. Friends and family pitched in to foot the $13,000 cost of a private medical plane Arthur would need for the trip. Paulette Roberts, Arthur’s aunt, had gotten ordained online years before in the hope that someday she would be able to marry the two. She was ready for the ride.
On July 12, 2013, the two wed on the tarmac of Baltimore-Washington International Airport in an emotional ceremony that lasted just moments. They were back home in Ohio in less than an hour.
“It wound up to be a beautiful day and a meaningful day,” says Roberts. “But we had no idea that it would be where it is now.”
The honeymoon didn’t last long. Within days of the wedding, a local lawyer delivered some harsh news. Since Ohio does not recognize same-sex marriage, Arthur’s death certificate would list him as “single” and Obergefell’s name would be nowhere on the document.
Obergefell immediately filed for — and won — a temporary injunction, allowing his name to be listed on the document as “spouse.” Arthur died three months later.
But the legal battle went on. In December 2013, a judge made the injunction permanent. Immediately, the state of Ohio filed an appeal in an attempt to removed Obergefell’s name from Arthur’s death certificate. The case reached the 6th U.S. Circuit Court of Appeals the following summer.
The appeals court would go on to rule against Obergefell — as well as couples with other same-sex marriage cases in Michigan, Kentucky and Tennessee. The rulings contradicted other circuit court decisions nationwide that had ruled in favor of same-sex marriages in recent years.
“I was hurt. I was angry,” says Obergefell. “But there was that silver lining because so many people at that point were saying, ‘Well, the Supreme Court won't get involved until there’s a split between the appeals courts.’”
Sure enough, the Supreme Court was the final stop. All of the cases have now been combined under Obergefell v. Hodges, and the court is expected to rule later this month in the case that could change gay rights in America considerably.
SCOTUSblog’s Kevin Russell says if the court rules in favor of the legality of same-sex marriages on both of the questions that Obergefell v. Hodges asks, the implications could extend far beyond marriage.
“This could be a decision that says that it is generally unconstitutional to discriminate on the basis of sexual orientation in every sphere,” says Russell. “And if the Supreme Court holds that, then this will be a huge case. It'll be the ‘Brown v. Board of Education’ for sexual orientation. It will mean that discrimination on the basis of sexual orientation, at least by states and by the federal government, is unconstitutional across the board.”
Obergefell’s case, however, also poses an unlikely danger to proponents of same-sex marriage. Currently, 37 states and Washington, D.C., have legalized same-sex marriage. However, in 21 of those states, it is only legal because courts ruled state bans unconstitutional. If the Supreme Court rules against him, and additionally goes so far as to say that the constitution does not protect marriage at all, those rulings could be in jeopardy.
Experts say that outcome is largely unexpected, but they concede that this scenario could be a major setback for gay couples. Same-sex couples who are now legally married in 21 states could suddenly lose their legal status. As Russell says, “It would be a huge mess.”
That fear is not lost on Obergefell, who says he “absolutely” shares that concern. “I think there would be a certain level of pandemonium in the country. I mean, how could there not be, because suddenly, again, you're creating this second class of citizens.”
Nonetheless, he’s staying positive. Each night before he falls asleep, he talks to his late husband. He always envisions how the conversation will go on the day of the ruling. “I’m hoping that night, as I lie in bed and talk to John and tell him about my day, I hope that I’m able to say, ‘John, we won. We helped bring marriage equality to the United States. Hard to believe we did it. And I wish you were here to celebrate with me.”
Obergefell has been in the Supreme Court twice before — once on a tour and once for oral arguments. He plans to be inside again on the day the decision is reached. He hopes that — just like when he met John — the third time’s a charm.