Federal court in Cincinnati will be ground zero in the U.S. debate over same-sex marriage

Judges' rulings could affect thousands of couples

CINCINNATI – Jim Obergefell's husband, John Arthur, died on Oct. 22, 2013, two months to the day after a judge ruled that Jim could be named as a ‘surviving spouse’ on John's death certificate.

The ruling by a Cincinnati judge was significant because it meant that the marriage of Jim and John, which took place on an airport tarmac in Maryland, could be legally recognized in Ohio. But the State of Ohio appealed that decision and on Wednesday, Aug. 6, the federal court in downtown Cincinnati will be the scene of arguments in that case, as well as five others from Ohio, Kentucky, Tennessee and Michigan.

The cases heard Wednesday in the U.S. Court of Appeals for the Sixth Circuit will influence the nation's debate over gay marriage and could shape how the issue is framed as it inevitably makes its way to the U.S. Supreme Court.

Whether Jim and John's out-of-state marriage can be recognized in other states, including their home state of Ohio, is a key issue in the debate.

“No matter how uncomfortable our relationship makes someone, our relationship matters and still deserves respect,” Jim said.

“When you can’t imagine a day without that person, you know he’s the right one and if they’re willing to put up with all of your crap… I just knew,” Jim said about knowing that he wanted to spend the rest of his life with John.

Jim still says, ‘I love you’ to John every night and ‘I miss you’ to a framed photo on the nightstand.

He still wears his husband’s silver band with black detail work on his left ring finger, now fused with his wedding band. He pulls it off to point to a pocket on the inside of the ring, where a small sprinkling of John's ashes is kept with him always.

Their love story began in the fall of 1992… well, that’s when they met at Uncle Woody’s near the University of Cincinnati. However, the connection didn’t quite spark until New Year’s Eve, as they rang in 1993 together.

Jim was 26 and John was 27.

“John liked to say, ‘It was love at third sight,’” Jim laughed.

They traveled. They laughed. They loved.

In January 2011, Jim noticed that John was slapping his left foot when he walked. He scheduled an appointment with their family doctor.

After a slew of medical tests, in May 2011 John was diagnosed with Lou Gehrig's disease. He was 45 years old.

As his disease progressed, Obergefell said, “It was a blur.”

“In some ways a lot of denial, pretending that life wasn’t changing.”

Slowly, he went from a cane, to a walker, to a wheelchair; then, he was remanded to a power chair, spending much of his time in bed watching TV.

“It was heartbreaking to watch,” he said.

Jim, now 48, said that after four homes and 21 years together, he and John decided to say, ‘I do.’

Remembering how he proposed to John, Jim removes his glasses and excuses himself from the table. Grabbing a tissue, he sweeps the tears away from his eyes.

“I just leaned over and kissed him and said, ‘Let’s get married,’” he said, reminiscing when he asked for his bed-ridden partner’s hand in marriage.

Aboard a cramped medical jet, Jim and John made a lasting commitment to each other on July 11, 2013, on a Maryland airport tarmac. He was too ill to travel outside of the plane’s cabin. John’s aunt, Paulette Roberts, officiated amidst a nurse and two pilots.

“I barely made it through my vows,” Jim remembered. “I was breaking up through the whole thing, but it was wonderful.”

21 years ago, I was floundering - not sure who I was, not sure what I was doing, not sure where I wanted to go.

We met for the first time. My life didn’t change. Your life didn’t change. We met a second time. Still, nothing changed.

Then we met a third time, and everything changed. As you recently said, it was love at third sight, and for the past 20 years, 6 months and 11 days, it’s been love at every sight.

You’ve taught me generosity. You’ve taught me balance. You’ve given me joy. You’ve loved me when it was easy and when it was difficult. (Knowing me, you’ve probably never had the easy part - just the difficult!)

You’ve made me a better person.

Thank you - for seeing in me someone you could spend your life with. Thank you - for allowing me to love you when you thought you were lost and beyond love.

I’m overjoyed that we’ll now have a piece of paper that confirms what we’ve always known in our hearts - that we’re an old, married couple who still love each other.

I give you my heart, my soul, and everything I am. I am honored to call you my husband.

“We got married. It was for us. We never thought beyond that,” Jim said.

In February 2013, John was moved into hospice. He died in October.

“Horrible. Watching someone you love lose every single ability and be fully aware of everything he lost,” Jim said wiping away tears streaming down his cheeks from under his glasses, about losing John last fall. “But I was happy for him that it was over.”

Prior to his death, and four days after they were married, the couple spoke with civil rights attorney Alfonso Gerhardstein, who told them that when John died, his death

certificate would list him as ‘single’ with no surviving spouse.

“It was a slap in the face,” Jim said.

“It was a horrible feeling to know that our legal marriage could be brushed off by the state we call home—it made me angry.”

In order for the State of Ohio to recognize their union, Jim had to take his case to court.

“For the state to pretend we don’t exist, to actively denigrate our relationship… it isn’t right for us to go through this. It isn’t right for anyone to go through this. We have to stand up and fight.”

And that’s what he did.

“It just was the right thing to do,” he said. “Not just for us, but for our society and couples like us.”

That Friday, July 19, the case was filed. And the following Monday, U.S. District Court Judge Timothy S. Black heard the case, including a speech from Jim. It would be the first same-sex marriage case heard on a state level in Ohio.

READ MORE ABOUT THE CASE.

“James and John were together for 20 years. This is the last document that records John’s life on earth. It should note his most significant relationship,” Gerhardstein said, who has been a civil rights litigator for 38 years.

Not allowing that, he said “is completely demeaning to the couple and his legacy.”

Your Honor,

During our 20+ years together, John and I have taken care of each other during good times and bad, when richer and when poorer, and in sickness and in health. For the past two years, I've had the honor of caring for him as ALS has stolen every ability from him. Rarely a day goes by that he doesn't apologize for what he feels he's done to me by getting sick. He is physically incapable of doing anything to thank me or assuage his feelings of guilt, and we all know that there are times words aren't enough - we need to do something. What he wants is to die knowing that I will be legally cared for and recognized as his spouse after he is gone. That would give him peace, knowing he was able to care for me as his last thank you.

When I learned that John would forever be listed as single on his death certificate, nor would my name be listed as his spouse, my heart broke. John's final record as a person and as a citizen of Ohio should reflect and respect our 20-year relationship and legal marriage. Not to do so is hurtful, and it is hurtful for the rest of time.

I'd like you to look at this picture. It's a photograph of our portrait that we had painted about five years into our relationship. It's painted from photographs the artist took of us in Spring Grove Cemetery. Why Spring Grove? Because it's a beautiful, peaceful place that has always been one of our favorite spots, partly because John's mother's family plot is located there. John has always planned to be memorialized on that family plot, and his plan changed to include me; however, we later learned that interment rules put in place by his grandfather and his grandfather's siblings, at the time the plot was purchased, limit burials and memorials to descendants and married spouses only. John can be memorialized on the family plot, but Spring Grove interprets the interment rules and there is no guarantee that they will recognize our marriage if Ohio does not. We've been beside each other for more than 20 years and we deserve to be beside each other in perpetuity. We want the option to do that in his family plot in Spring Grove, but that should not require keeping John's remains in limbo or having his life go unmarked for an indefinite period of time.

It's impossible to explain how or describe why, but getting married changed everything. We feel different, life feels different. We feel better. We feel more connected. We feel valued. John's life will end soon. I know that, he knows that. What a horrible thing to look at your spouse at the end of your life and have your last thoughts be "I love you, Jim, but I still can't call you husband in the state where we built our life together, paid taxes, and were productive members of society. I'm sorry I couldn't take care of you as a thank you for the way you took care of me."

I will have to live the rest of my life knowing those were his last thoughts, not "I love you, Jim, my husband."

We very much want a ruling that gives clear direction on the death certificate and direction to Spring Grove. That ruling will not just be an order about the details of death. It will be much more. Because, Judge, it will state the reasons for your order and that is even more important. Every day John and I live without equal protection – every day we are treated differently than opposite-sex couples who go to other states and are married – really denies us both dignity and justice. To hear a federal judge in Ohio say to me and say to John that our marriage is equal and that it will be recognized would mean that we can stop living in uncertainty and inequality, allow us to focus solely on John's quality of life, and permit us to fully and truly end John's life together as a married couple. Each day without that right is a day too long.

Everyone

deserves to die with dignity. To allow our marriage to remain unrecognized by our home state, and to allow me, his spouse, to remain in legal limbo, is to cause John to die without dignity. There is no reparation for the harm that causes us.

By 5 p.m. Black ruled in the couple’s favor.

“[It] felt really good—we exist and we matter,” Jim said of the court’s decision recognizing their out-of-state marriage.

But the victory would be short-lived. On Jan. 16, 2014, Ohio Attorney General Mike DeWine filed an appeal and is awaiting the Aug. 6 court date.

John’s death certificate currently lists him as ‘married’ and Jim as his surviving spouse.

Gerhardstein said the judge’s order was major step in the march toward marriage equality in Ohio.

READ MORE: Gay couple files federal lawsuit

READ MORE: Gay marriage ban challenged in federal court

READ MORE: Judge grants gay couple temporary injunction

Six cases spanning four states

Since the Supreme Court’s June 2013 decision striking down the Defense of Marriage Act (DOMA), there have been 34 rulings in favor of the freedom to marry in 31 cases from 26 different federal and state courts involving the marriage laws of the United States and 21 states including Utah, Ohio, Colorado, Oklahoma, Arkansas, Kentucky, Idaho, Illinois, Indiana, Michigan, Oregon, Pennsylvania, Tennessee, Texas, Virginia and Wisconsin, according to the ACLU of Ohio.

The U.S. Court of Appeals for the Sixth Circuit oversees four states: Kentucky, Michigan, Ohio and Tennessee. In all four states, federal judges have ruled in favor of same-sex marriage, but in each of the six cases, the decision was appealed.

Federal Judges Martha Craig Daughtrey, Jeffrey S. Sutton and Deborah L. Cook will hear the arguments to laws banning marriage equality in Kentucky, Michigan, Ohio and Tennessee.

“I think it’ll be a very vigorous argument,” Gerhardstein said, who is also arguing the Henry v. Himes case. “It will be an intense and exciting argument.”

Activists on both sides of the issue will be watching closely what happens on Aug. 6.

Hearing six cases on same day regarding same-sex marriage is “historic, Michael Premo, campaign manager for Why Marriage Matters Ohio.

“We’ve seen tremendous momentum in the push for marriage equality nationally,” he said. “We are optimistic given the string of judicial victories in the last year,” Premo said.

One immediate effect of the Aug. 6’s rulings could be that the State of Ohio would have to recognize marriages out of state.

“It would be a huge boost in momentum in getting those couples the freedom to marry," Premo said.

The case in Michigan argues that the state's ban on same-sex marriage unconstitutional, while the cases in Kentucky, Tennessee and Ohio argue that those states should recognize marriages performed in other states.

Eventually, everyone will be free to marry, Premo said. “It is inevitable – it’s not a question of if, but when.”

“It’s a Hail Mary pass by the homosexual activists to force same-sex marriage on all 50 states,” said Phil Burress, president of Citizens for Community Values. “This is a very, very serious issue for us and for America.”

Traditionally, marriage has been one man and one woman, Burress said. And a ruling in favor of marriage equality, he continued, would destroy the oldest and most important institution.

“About 1.6 percent of the population is going to redefine the most important institution on Earth,” he said.

“Traditions change,” Jim rebutted. “Not all traditions are a good thing. Traditions aren’t for everyone… the constitution is.”

For Bonnie and Katie Meyer, who married in New York City a year ago, a ruling in favor of same-sex marriage means not only will the federal government recognize their marriage, but so will the Commonwealth of Kentucky.

“I knew I was going to spend the rest of my life with her,” Katie said, who described marrying her wife as stepping off a ledge, taking a risk and the “gateway to the rest of our lives.”

The Covington, Ky., couple said it’s not about a piece of paper. It’s about showing their commitment to family and friends. And it’s about publicly saying, ‘We are married.’

“We’re recognized at a national level but not at a state level,” Bonnie said. “You come home and it’s not even recognized in the state that you love – It’s not quite right.”

It’s also about practical and financial reasons, like finances and taxes.

Bonnie and Katie, who are recognized as a married couple by the federal government, file their federal taxes as ‘married’, however, on their state taxes they must file as ‘single’; and yet again for the city they live in, they file as a ‘domestic partnership’.

And they’re not alone.

According to The Williams Institute's analysis of the 2010 U.S. Census, 7,195 same-sex couples are living in Kentucky; and 19,684 live in Ohio.

Snapshot of 6th Circuit Court of Appeals cases-

Kentucky: Bourke v. Beshear / Kentucky: Love v. Beshear

On Feb. 12, 2014, a federal judge ruled that Kentucky acknowledge same-sex marriages performed

in other states. While the Kentucky Attorney General Jack Conway supported the ruling, Gov. Steve Beshear appealed.

READ THE CASE:

June 9, 2014

July 1, 2014

Michigan: DeBoer v. Snyder

On March 21, 2014, a federal judge ruled in favor of the freedom to marry in the DeBoer v. Snyder case, striking down a ban on same-sex marriage. Following that decision, more than 300 same-sex couples across the state received marriage licenses until the Sixth Circuit Court of Appeals granted a stay in the decision. The state is appealing the ruling.

READ THE CASE.

Ohio: Obergefell v. Wymyslo

On Dec. 23, 2013, judge Tim Black ruled in Obergefell v. Wymyslo that the State of Ohio must respect the marriages of same-sex couples legally performed in other states for the purpose of listing surviving spouses on death certificates.

READ THE CASE:

July 22, 2013

Dec. 23, 2013

April 10, 2014

April 24, 2014

Ohio: Henry v. Himes

In April 2014, Black ruled that Ohio must respect all married same-sex couples who wed in other states for all state purposes, including listing parents on children's birth certificates.

READ THE CASE.

Tennessee: Tanco v. Haslam

On March 14, a federal judge ordered state officials to respect the marriages of three same-sex couples whose lawsuit, Tanco v. Haslam, challenges the state’s marriage ban. The couples are represented by the National Center for Lesbian Rights.

READ THE CASE.

Living life half-full

Every morning Jim awakes next to an empty, unmade half of the bed where John used to sleep.

He rolls over to grab a peek at his phone. As the touchscreen illuminates, his husband’s shining smile stares back at him.

And he starts his day.

There’s a hole in his life and in his heart.

“Life is empty, but still oddly full,” he said about his husband’s unforgettable positive attitude.

Arthur’s essence lingers within their Gateway Quarter condo in Over-the-Rhine, where he made a home with Jim for nearly three years. John’s favorite mosaic chickens and monkeys, figurines and local artists’ paintings fill each room, replenishing Jim with a sense of bittersweet memories.

“I can’t imagine being anywhere else. I look around this place and all I see is John and I’m not willing to give that up,” Jim said. “I feel like I’m surrounded by him all the time.”

He is living with John’s ‘glass-half-full’ outlook on life, not wasting a moment on regret.

“I try hard to not let things get to me. John would find the positive or funny in any situation,” Jim said. “A voice pipes up and says, ‘Hold on, is this as bad as John dying?’ I don’t let things annoy me. That’s what he tried to teach me.”

“He definitely changed the way I approach life.”

As Aug. 6 approaches, Jim, who will attend the hearings, said he’s optimistic that the judge will rule in his favor.

“It comes down to the court saying, ‘Yes, these laws are unconstitutional. Same-sex couples deserve the same rights and respect as any other couple.’ It will be them telling us, ‘We are equal citizens of the United States.’ Because right now, we aren’t.”

Fairness Campaign of Kentucky will partner with Equality Ohio to host a rally on Aug. 5, at 5:30 p.m. in Lytle Park in an effort to support the plaintiff couples whose cases will be heard the following day.

Oral arguments for the six cases will be heard on Wednesday, beginning at 1 p.m. at the Potter Stewart Courthouse in Cincinnati.

On Aug. 26, the 7th Circuit Court of Appeals will hear cases from Indiana and Wisconsin. The 9th Circuit Court will hear cases from Nevada and Idaho on Sept. 8.

 

For more stories and photos by Jessica Noll on issues impacting Northern Kentucky, visit http://www.wcpo.com/noll  or follow her on Twitter @JessicaWCPO.

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