Years after same-sex marriage ruling, his fight continues

CINCINNATI » After the speeches and the celebrations and the interviews came something Jim Obergefell hadn’t experienced in years: quiet.

It didn’t come immediately after the U.S. Supreme Court ruling that required all states to grant same-sex marriages. The fanfare after that historic decision — the one bearing Obergefell’s name — lingered far longer than he could have expected. But eventually, things slowed down and life began to feel normal.

Which meant Obergefell could finally grieve.

“When I found myself not rushing here, there, and everywhere, the grief started to hit, and the loss started to hit,” Obergefell said this week. “I thought I’d worked through a lot of it but when you don’t have those other things to keep you busy, you realize you’re still grieving.”

Last week marked the fifth anniversary of the high court’s decision in Obergefell’s landmark case. In those five years, studies estimate that about 300,000 same-sex couples have been married nationwide. That more than doubles the number of samesex marriages in the U.S., where the unions had been allowed patchwork-style in some states but not others, prior to 2015.

With all the celebratory hubbub that followed, it’s sometimes lost that at the heart of Obergefell’s lawsuit was a death.

In July 2013, Obergefell married his longtime partner in love, John Arthur, who was gravely ill with Lou Gehrig’s disease. Because Ohio at the time didn’t allow same-sex unions, the couple flew to Maryland to exchange vows.

Arthur died of the disease three months later, and Obergefell sued to be listed on the death certificate as Arthur’s husband. That case was one of six argued together before the high court. Obergefell was the lead plaintiff, meaning the case bore his name, though he was joined by dozens of other plaintiffs.

The whirlwind of that suit meant Obergefell was never alone with his thoughts. But as the focus has shifted to other minority groups, he’s had time to learn that, contrary to the self-help books, grief does not come in clean stages.

“That implies it’s the same for every person, and it isn’t,” he said. “I’m still grieving, I’m still processing.”

In April 2015, when the Supreme Court justices heard oral arguments, Obergefell and his fellow plaintiffs were treated more like celebrities than litigants.

People hoping to get coveted seats for the arguments camped out for hours outside of the stately building. Those who made it inside heard impassioned, nuanced arguments. One of the main debates was whether the courts should enter the same-sex marriage fray or let voters decide.

As Justice John Roberts wrote in his dissent (emphasis his): “The real question in these cases is what constitutes ‘marriage,’ or — more precisely — who decides what constitutes ‘marriage.’ “

He said states shouldn’t be forced to redefine “a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.”

He added: “Just who do we think we are?”

The plaintiffs’ lawyers argued that denying same-sex couples the right to marry was a violation of the 14th

Amendment guaranteeing citizens “equal protection of the laws.”

“The answer then, as it is now, is that we’re talking about a fundamental right. We’re not talking about a discretionary policy decision,” Alphonse Gerhardstein, Obergefell’s Cincinnati-based lawyer, said this week. “When it comes to a matter of a fundamental right, it’s central to our Constitution that those are not up to a vote. Almost by definition, you’re going to have the minority oppressed. The majority often pushes marginalized people to the side.”

Gerhardstein recalled being in Washington, D.C., the day the ruling was announced. He called Cincinnati Mayor John Cranley with the news. Later that day, Cranley performed a public wedding to marry couples in Downtown’s Fountain Square.

The four justices appointed by Democratic presidents were joined by Justice Anthony Kennedy, a Republican appointee. Within two years, more than 150,000 same-sex couples got married, according to research from the Williams Institute at the UCLA School of Law. According to U.S. Census estimates, there are more than 500,000 married same-sex couples in the country.

The impact of those unions has been more than cultural. Same-sex weddings have generated more than $3 billion over the past five years, the Williams Institute study estimates, which also said the weddings have generated some $244 million in state and local taxes and created nearly 50,000 jobs.

But the ruling has never been welcomed by all. In Kentucky, a county clerk defied it and refused to issue marriage licenses to samesex couples. Two of those couples are suing Kimberly Davis, who lost her Rowan County reelection bid in 2018. An appellate court ruled last year that Davis could not claim qualified immunity to duck being sued because the right she violated had clearly been defined. The suit is still pending.

In Texas, a Waco-based judge is suing the state’s Commission on Judicial Conduct after the agency warned she was violating the law by refusing to perform gay weddings. Since 2016, Judge Dianne Hensley had been handing same-sex couples typed statements that said she wouldn’t marry them because of “a sincerely held religious belief as a Christian.” Hensley continued performing heterosexual weddings.

The 5-4 Supreme Court ruling has been pelted by these and countless other minor challenges, but so far, none has seriously threatened it. In fact, earlier this month the high court ruled in Bostick v. Clayton County that employers couldn’t fire workers simply for being gay or transgender.

Douglas Hallward-Driemeier, a D.C.-based lawyer who’d argued before the justices on Obergefell’s behalf in 2015, said that 6-3 ruling was huge, especially in tandem with the samesex marriage decision.

“On Friday, you could exercise your right to get married under Obergefell, but be fired on Monday for being gay,” Hallward-Driemeier said. “The decision earlier this month in Bostick means that’s no longer the case.”

The biggest hurdle still facing is rooted in religion: Several lawsuits in various states charge that people who religiously oppose same-sex relationships should not have to follow the anti-discrimination laws designed to protect the LGBTQ community.