His Husband Died In 2013, But Jim Obergefell Is Still Fighting For Their Marriage
After two decades together, Jim Obergefell and John Arthur married in 2013, as Arthur was dying from ALS. Ohio doesn't recognize their marriage. Next month, the Supreme Court will decide if it must.
CINCINNATI — The plane was only on the ground a matter of minutes. Just enough time for wedding vows and little else.
Jim Obergefell and John Arthur had wanted to marry for a long time. In 2013, after the Supreme Court struck down the Defense of Marriage Act, they decided this was the time to do it — even though Arthur was very, very ill. He had been diagnosed with amyotrophic lateral sclerosis (ALS) in 2011, a fatal neurological disease that paralyzes the body. He was confined to his bed.
The couple could not get married in their home state of Ohio. They could, however, get married in one of the handful of states that did allow same-sex couples to marry. So their wedding took place aboard a small, specially equipped medical plane with two pilots, a nurse, and Arthur’s aunt — she performed the ceremony.
“We landed at Baltimore, sat on the tarmac for a little bit, said ‘I do,’ and 10 minutes later were in the air on the way home,” Obergefell said.
The marriage performed there on the tarmac of Baltimore-Washington International Airport has become iconic within the marriage equality movement and beyond, a testament to a couple’s commitment and to the absurd lengths the law required them to undertake for a simple ceremony.
Today, Obergefell’s condominium in the Over-the-Rhine neighborhood of Cincinnati is covered with artwork, from landscape scenes to the floor-to-ceiling painting of a man submerged in water, still in his business suit. The wide hallway snakes past a bedroom, the kitchen, around the dinner table, inside the bright, aquamarine living room — it’s all filled with art.
Obergefell lives there alone. Arthur died in late 2013, three months after their wedding.
Off the long hallway, inside a smaller sitting room, hangs a portrait of the couple. In this painting, it's easy to see them together and married. In life, they were husbands. Now, Obergefell’s request — which has gone all the way to the U.S. Supreme Court — is a simple one: to be listed as such on his husband’s death certificate. That’s it.
“Taking care of John, it’s what I did our entire 21 years together,” Obergefell said in a wide-ranging interview with BuzzFeed News earlier this year. “It’s really — I had the great privilege of doing that full time as he was dying ... This case was another way to take care of him and to respect him and to respect our relationship.”
The story of John Arthur and Jim Obergefell is one of several stories now before the Supreme Court, as it considers whether the U.S. Constitution requires that states recognize same-sex couples’ marriages and allow other same-sex couples to marry. And their story comes out of a city that has lived out some of the biggest twists and turns in the evolution of LGBT rights.
Their effort to obtain that death certificate, before and after Arthur’s death, has been convoluted and complicated. A federal judge initially sided with them. Because of that, when Arthur died in October 2013, his death certificate listed him as married.
Ohio officials appealed a later ruling in Obergefell’s favor, however, and have said that they actually will issue an amended death certificate — listing Arthur as single — if they ultimately win the lawsuit.
“The last thing that this couple gets from Ohio is the death certificate,” Al Gerhardstein, a longtime civil rights attorney in Cincinnati, said about his reason for taking the case. “The only thing Ohio needed to do was recognize the marriage on the death certificate, and I knew they weren’t going to do it.”
The lawsuit has made its way through the federal courts — including what Obergefell called a “horrible” loss this past November at the 6th Circuit Court of Appeals.
“We shouldn’t have to be treated this way,” he told BuzzFeed News a couple weeks after the Supreme Court decided to hear his appeal. “We shouldn’t experience this, and it was a very easy decision to say, ‘We have to stand up and say we’ve had enough.’”
When Arthur and Obergefell met the first time, there weren’t sparks. Both men had gone to the University of Cincinnati at similar times in the late '80s and early '90s and, though they never knew each other at the time, they had many mutual friends.
Obergefell went off to grad school in the fall of 1992 at Bowling Green State University, returning many weekends to Cincinnati, and they met at a bar where one of those mutual friends had invited them both out.
“Met John the first time. Nothing,” he said of that night. “It was just, ‘Oh, hi,’ mutual friends meeting.”
A month later, maybe, they saw each other at the same bar. Same mutual friends, plus one — Obergefell’s current real estate partner, Melissa.
“Melissa loves to tell this story,” he said, smiling. “Later that night, after they left, Melissa said to John, ‘John, that guy really liked you.’ ‘Who?’ ‘That guy, Jim...’ ‘No, we’re just friends.’ ’No, John, he likes you.’”
Then, on New Year’s Eve 1993, they met again. “Love at third sight.”
“So, third time John and I had met, and I never left,” he said. “I think John’s mom wanted to kill me, but I decided not to finish grad school because I wanted to be here in Cincinnati.”
Arthur and Obergefell began making their life together in Cincinnati. “Buying our first home,” Obergefell said, “selling that, buying a different home, renovating homes, travel."
In the midst of all that, though, voters there threw them a curveball.
In 1993, voters considered an amendment to the city charter that would ban Cincinnati from passing specific protections based on “homosexual, lesbian, or bisexual orientation, status, conduct, or relationship,” a ballot fight that had been — before his current lawsuit — Obergefell’s only entrance into the political arena.
“That is the first and only time I’ve ever been part of an organized — I won’t call it a protest, but I remember being at a polling place with other people, with signs and whatever, asking people to vote against that measure,” he said, adding that Arthur was not with him. “Not that I’m that much of an activist type either, but John was even less of an activist than I am.”
The amendment passed.
Obergefell didn’t continue his activism. The couple didn’t go to protests or parades, really. After election day, he said, “John and I thought the best thing we could do was just be ourselves. We tried to be good people, good members of the community, and that’s how we approached life.”
Meanwhile, Al Gerhardstein and a handful of other lawyers fought the ban. “When we first sued, and got a preliminary injunction, the judge — very much like the judge in [the current] Michigan [marriage case] — said, ‘This is a big deal. We need to make sure we have a full trial,’ which of course we wanted,” Gerhardstein said.
“Judge [S. Arthur] Spiegel gave a very thorough decision, with detailed findings, concluding — as you would expect — gay people are just like everyone else,” he continued. “There really is no big deal here. There is no reason, no basis — no rational basis, certainly — to discriminate against them.”
The federal district court ruled that the amendment was unconstitutional, but the appeals court overturned that decision. After the Supreme Court struck down a similar statewide amendment in Colorado in 1996, there was new hope for Cincinnati. When the appeals court upheld the amendment again, Gerhardstein asked the Supreme Court to review the case. The Supreme Court refused in 1998 — leaving the charter amendment in place.
“And this stood, as the only city in America that had a discriminatory charter amendment like that that prohibited gays from full citizenship,” Gerhardstein said. “And that was horrible.”
In early 2011, Obergefell noticed that Arthur’s left foot “sounded strange” when he was walking. “It was slapping, more than his right foot,” Obergefell said.
Then, uncharacteristically, Arthur began falling.
In the years since that 1993 city charter, they’d remained in Cincinnati. It wasn’t until 2004 that voters repealed the charter amendment — the same year that Ohio lawmakers passed a law banning same-sex couples’ marriages and marriage recognition and voters approved a statewide constitutional amendment doing the same. The city had moved on, but the state had informed the couple yet again that they were, Obergefell said, “second class, if that.”
Now, though, something was wrong with Arthur. The couple had planned a trip to Finland to visit a foreign exchange student they had earlier hosted, and Obergefell said, “For whatever reason, that was the thing that made me put my foot down, and say, ‘You’ve got to have this looked at. Something’s not right.’”
That spring was a series of doctors’ appointments and tests — from the family doctor and neurologist to CAT scans and MRIs. In June 2011, Arthur was diagnosed with ALS. They moved from their two-level condo into the winding, single-floor condo where Obergefell still lives. They got a different car. “We started doing things to address it, not just push things off to the end,” Obergefell said.
But Arthur’s condition deteriorated. He began using a cane in 2011. He went from cane to walker in 2012, then to a manual wheelchair. Then to a power wheelchair, and then in early 2013, he began receiving hospice care. In just two years time, Arthur was confined to a bed.
Obergefell was there the whole time, providing whatever comfort he could. Even the small items are still there in the condo. Little gifts to Arthur, Obergefell said.
A pillow emblazoned with a map of Ohio — Cincinnati marked with a red heart — that had been placed under Arthur’s elbow, a point of trouble. A little brown bear stuffed animal, wearing a blue-and-white striped sweater, was a reference to Arthur’s “Bear” nickname for Obergefell, purchased for whenever Obergefell was out of the condo. “His Bear would always be home,” Obergefell said.
Friends and family, he said, praised him for what he did for Arthur. But he didn’t consider it a decision.
“The person I love was physically falling apart, and I was happy and privileged to be able to be there to help him. So, it’s — what else would I do?”
Back in the 1990s, when the possibility of marriage for same-sex couples was in the Hawaiian air, Obergefell said he and Arthur had considered marriage: “John’s stepmother at the time said, ‘If that passes in Hawaii, I’m flying everyone out there, you guys, my treat, you can get married.’”
But a constitutional amendment passed there in 1998 ended that possibility, and, though Obergefell said the topic came up occasionally after then, he added, “Our concern was always, ‘We don’t want to get married unless it actually means something legal for us. We knew it wasn’t going to change in Ohio — but until some level of government, federal or state, made a change or we had some type of recognition, we didn’t want to do it. Because we actually wanted it to mean something, legally.”
On June 26, 2013, that change finally happened. The Supreme Court struck down DOMA’s ban on federal recognition of same-sex couples’ marriages in United States v. Windsor. That day, Jim Obergefell and John Arthur decided they were going to get married.
But where? Arthur was confined to a bed at this point, receiving hospice care.
“I couldn’t just put John in his power wheelchair [and take] the four- or five-block trip to the Hamilton County Courthouse to get a marriage certificate.”
The first possibility considered was New York. A friend’s aunt had married her wife there. But both people have to apply in person for a marriage certificate in New York, and then there was a waiting period after that — time when they would need to find a place where Arthur could stay and medical assistance — and, practically speaking, “If John’s in the back of an ambulance … for four or five hours, that’s going to be really rough on him.”
A friend who had grown up in Maryland asked whether Obergefell had considered going there. In Maryland, only one person needed to apply for the license. There was a waiting period, but that could work, Obergefell thought. “I could go up in advance, get the marriage license, come back, and then — how do we get there? Can’t drive. Could fly, but there’s no way John could fly commercial.”
Arthur’s hospice offered what they call a “gift of a day,” where they do something for a hospice patient that the person has always wanted to do, but chartering a medical jet was “beyond their capacity to help with.” They offered to take care of related costs for the trip.
How could anyone afford something like this? Maybe there would be some other route, some other way to make it work, Obergefell thought.
“I just posted something on Facebook, saying, ‘Hey, does anyone have any connections with pilots or medical companies,’ things like that, trying to make this happen,” he said, choking up and stopping for a few seconds.
“And immediately, people are like, ‘We’re going to give you money, we’re going to help you pay for it.’”
The couple married on July 11, 2013, returning from Maryland to a large group of family and friends waiting for them on the tarmac at Cincinnati Municipal Lunken Airport when they returned home.
Even though the couple had been together two decades, the marriage meant something different.
“We both used the word ‘husband’ a whole lot. I don’t think two sentences came out of either one of our mouths without the word ‘husband’ being included,” Obergefell said. “Simply put, it felt good.”
The reality, though, was that this was a respite in a dark time — their time together would be short. Arthur was very ill. He was dying.
What would happen when he did die? The state of Ohio doesn’t recognize the marriages of same-sex couples performed in other states. On the final legal record of Arthur’s life, there would be no acknowledgement that he was ever married — that he ever shared his life with someone else. On paper, he would die “single.” It was unacceptable.
“After going through all of that, and having that incredible experience of saying, ‘I do,’ and, for once in our 21 years together at that point truly feeling like we were a couple that mattered and was recognized and respected — to then have it come full circle, and say, ‘Jim, you know, when John dies, he’ll be listed as single on his death certificate and your name won’t be there as spouse,’” Obergefell said.
That same weekend of the wedding, some friends of the couple were at a party with Gerhardstein and mentioned the couple’s wedding. The lawyer had already been thinking about what to do in Ohio in the wake of the Windsor decision — how to put the next steps in motion, how to achieve more in terms of LGBT rights. And here was a couple who’d gone to extraordinary lengths for something impermanent when it came to the law.
“You go to all this trouble, go all the way to Maryland, come back here, you want to rest in peace, but you rest alone — unless this gets fixed,” Gerhardstein said.
The next week, Arthur and Obergefell met Gerhardstein. Eight days after their wedding, they filed a lawsuit to have their marriage recognized.
When Gerhardstein filed the case, he kept it narrow intentionally, he said — only addressing the marriage recognition question. The case was defined by a set of facts, the principles had been set out by the Supreme Court in the Windsor decision, and adding more to the case — couples seeking to get married in Ohio, for example — would have slowed it down.
Because of that decision, this is perhaps the cleanest, simplest representation of the issues before the justices now: It’s one piece of paper. It’s yes or no. Either the law recognizes that they were married, or it does not.
“Jim and John are a compelling story. It’s all of our stories, everybody dies, no one else gets a false death certificate at the end of their life. No one else is forced to tell a lie on their death certificate — so that doesn’t seem right,” Gerhardstein said.
“This is not a complicated case,” U.S. District Court Judge Timothy Black wrote in agreeing with Obergefell and Arthur’s claim on July 22, 2013.
Black ordered that Ohio officials could not issue a death certificate for Arthur that treated him as unmarried or that did not list Obergefell as his surviving spouse.
The rapid wave of judicial rulings over the past two years now feels inevitable and unsurprising. But when Black issued his ruling on Obergefell and Arthur’s case so soon after the Supreme Court’s Windsor decision, it sent shockwaves throughout the country — even as the ruling’s ultimate focus, one death certificate for one person, was small.
This ruling — and what has happened since throughout the federal court system, including some painful losses for same-sex couples and widows and widowers — set into motion the changes that have led to next month’s Supreme Court arguments.
In most of the many marriage and marriage recognition cases, the federal district court decision was appealed to the regional appeals court. Ohio is in the 6th Circuit Court of Appeals, for instance. Beginning last summer, appeals courts across the country began upholding rulings that bans on marriages for same-sex couples or recognition of those marriages were unconstitutional.
After the courts ruled, the officials in many of those states asked the Supreme Court to review the cases. In October, though, the Supreme Court did something that surprised many observers: The justices denied requests from five states for the Supreme Court to review appellate decisions — bringing marriage equality to each state. That set off a chain reaction. All of the other states in those circuits were subject to their respective circuit’s ruling, bringing marriage equality to even more states. Still other rulings continued to come down as well. Soon, the 19 states that had full, statewide marriage equality in the beginning of October had nearly doubled to 35.
But the Supreme Court hadn’t taken one case that would decide, nationwide, once and for all, the issue of marriage equality. Some began wondering whether each circuit would individually strike down marriage bans — and the Supreme Court might not need to take up the issue at all.
Because of the court’s action in October, it was widely assumed the justices were waiting for a so-called “circuit split” — two of these regional, federal appeals courts disagreeing.
On Nov. 6, 2014, a three-judge panel of 6th Circuit of Appeals issued a decision that upheld bans on marriage or marriage recognition in four states. Ohio officials had appealed Judge Black’s decision — and said that they would ultimately issue a death certificate that stated Arthur was unmarried if the state’s ban was upheld.
Judge Jeffrey Sutton, writing the appeals court’s decision, said that the same-sex couples seeking to end the bans had failed to “make the case for constitutionalizing the definition of marriage and from removing the issue from the place it has been since the founding: in the hands of state voters.”
Sutton went further, though, making the argument that this method of resolving the issue — at the ballot box — was best for same-sex couples by avoiding making “judges and lawyers” the “heroes” of the issue. “Better in this instance, we think, to allow change through the customary political process, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way,” Sutton concluded.
In short, the court ruled that Ohio did not have to recognize Jim Obergefell and John Arthur’s marriage. Now, though, there was a circuit split.
After a rapid round of briefing at the end of 2014, the question was back before the justices. In January, with the circuits split on the issue, the Supreme Court announced it would take cases from each state within the 6th Circuit: Kentucky, Michigan, and Tennessee, along with Ohio.
Three months to the day after Judge Black issued his first ruling in Arthur and Obergefell’s case, Arthur died at age 48. His death certificate, issued after Black’s ruling but before the appeals court even heard the case, lists him as married.
It’s taken time for Obergefell to adjust to the idea his simple case — his fight to preserve that death certificate, the record of his and Arthur’s marriage — will soon be argued in front of the Supreme Court. “You think about it, but it’s not the same as when you’re suddenly faced with” the prospect of the case being decided by the highest court in the country.
He — and Gerhardstein — are still angry about the 6th Circuit’s ruling and the idea that the voters must decide whether his marriage really happened. The decision, coming on the heels of so many other decisions striking down bans across the country, was a shock.
“It sucked,” Obergefell said. “It really did. It made me feel, once again, ‘Oh, you know what? I’m not a real American. I don’t have the rights everyone else does. I don’t have the respect that everyone else does.’ And, I’m not willing to give it up.”
Gerhardstein believes the argument was illogical and wrong, particularly pointing to some of his clients in the lawsuits, those with recently born children. “[T]hey can’t raise $7 million and rally the voters and secure the relief they need,” he said. “And they shouldn’t be forced to do that.”
But now they will be in front of the Supreme Court. For Gerhardstein, the court’s acceptance of the case gives him a chance to end this trip with a Supreme Court win after the disappointment of the Supreme Court deciding not to hear his challenge to the Cincinnati charter amendment almost two decades ago.
They will not be alone: The justices will hear two and a half hours of arguments in cases from couples in Kentucky, Michigan, Tennessee, and another case in Ohio.
There was a moment, in January, when it was unclear what the court would do. Would the justices pick just one case? Two cases? Which states? Which couples?
As everyone waited over the course of a week in January for word from the court, the plaintiffs across the four states bonded over their anxiety.
“We were are texting back and forth, we were on Facebook, messaging, and we all had the Supreme Court’s page up, where they post their [orders],” Obergefell said. “So, we’re all refreshing on a regular basis, just going back and forth, back and forth.”
Then, one of his friends posted something on Facebook on Friday afternoon, Jan. 16. “I don’t remember what it was, but clearly the decision had come out,” he said. “None of the plaintiffs had found it yet, and suddenly the world just exploded. Facebook, especially, was insane that day.”
Obergefell said he knew it was possible his case might be left out. When he saw that it was included, relief, joy, happiness followed. Seeing that the cases from all four states were being heard, he added, “I was really happy that all of my friends would be there, too, and that their cases were receiving the same importance as mine was.”
And yet, Obergefell knew that he would be going to the Supreme Court without his husband.
“One of the first things that I thought was, Boy, I really miss John. I wish he were here to hear this news,” he said. “And it really made me miss him, more than I had typically.”
In the alcove next to the front door of Jim Obergefell’s condo hangs the proclamation of “John Arthur and Jim Obergefell Day” from the Cincinnati City Council — tangible proof of the change that has taken place in this city since a couple just out of college made a home here.
The first thing a person sees walking into or out of the home is this proclamation. It states, in part, that “Jim and John are a shining example of why LGB couples should be treated equally, under the law, in every state and the United States of America.”
On the morning of Tuesday, April 28 — before the justices hold oral arguments in the cases out of all four states — Jim Obergefell will arrive at the steps of the Supreme Court as part of his effort to live up to those words.
“The last thing I want is to get in the mail an updated death certificate from the State of Ohio that suddenly says John’s single and I don’t exist as his spouse,” he said.
“I’m married to John. I’m not willing to give that up.”