Six years after the historic Supreme Court ruling in Obergefell v. Hodges, there's still a lot of work to do.
While same-sex couples have been able to wed in the U.S. since the 2015 Supreme Court ruling in Obergefell v. Hodges, Jim Obergefell says the fight for true marriage equality is still not over.
"Yes, marriage was this enormous step forward, this great thing that we now have. But even back then, we weren't equal in so many other ways," says Obergefell, the plaintiff at the heart of the Obergefell v. Hodges case. The marriages of those in the LGBTQ+ community are still treated unequally by people across the U.S., including county clerks, bakers, and adoption agencies. One case was recently argued before the U.S. Supreme Court during Justice Amy Coney Barrett's first week on the court: Fulton v. City of Philadelphia.
The case arose after the Philadelphia Department of Human Services ended its contract with Catholic Social Services when the agency would not certify same-sex couples as foster parents. The Catholic agency and three foster parents sued to state that they have religious beliefs against same-sex marriage and that the city's action conflicts with the First Amendment’s guarantee of religious freedom.
Now working with the Family Equality organization and appearing in the new Netflix docuseries, Amend: The Fight for America, Jim joined the LGBTQ&A podcast this week to talk about the extraordinary pace of change since Obergefell v. Hodges, his late husband, John Arthur, and why he says, "If I'm demanding equal rights, civil rights for me as a gay man, then I better damn well be demanding those same things for every other member of the LGBTQ+ community."
Jeffrey Masters: Can we start with your love story? How did the two of you meet? Jim Obergefell: It was thanks to a mutual friend. This was before I came out. My friend, Kevin, we were going out for a drink, and we went to a bar near the University of Cincinnati where Kevin and I had both attended. It wasn't a gay bar. It was just a campus bar, really.
I was still closeted. This is before I quit my job as a high school German teacher. It's before I went to graduate school, before I came out.
JM: How old were you? JO: 26. We walked into this bar and sitting at the bar was this tall blonde man. Kevin said, "Oh, that's my friend, John [Arthur]." And he introduced us. John scared the daylights out of me because he was out. He was so comfortable in who he was, so comfortable in being an out gay man that I thought for certain he was going to call me out.
He didn't. A couple of months later, I had come out and was back in Cincinnati from graduate school. Kevin and I went back to that same bar and guess who was sitting at that bar again, drinking a gin and tonic? John. We met the second time. It was during that conversation, John said, "Well, Jim, you'd never go out with someone like me."
I have no idea where I came up with the courage or the wit to respond the way I did, I said, "How do you know? You've never asked." And he still didn't. That was number two.
Number three was over the holidays. John, at this point, had a house and lots of housemates. They were having a New Year's Eve party and Kevin invited me to that party. I went to the party, there was John. And I never left. John and I like to say it wasn't love at first sight. It was love at third sight.
JM: In the mythology of your relationship, it says that John gave you a diamond ring about seven weeks into your relationship. Was the implication that this is a commitment ring or was it simply a gift? JO: I think it was both. By that point, we had had pretty open conversations because relatively quickly, I told him I wanted us to be a couple after that New Year's Eve party. He kept trying to talk me out of it, saying, "Jim, I'm a mess. I've dated a lot of men, and it's never ended well." I just refuse to be dissuaded. I said, "That was other people. I don't care. Let's do this. Let's date. Let's be a couple." Whether or not he actually said this ring symbolizes our commitment, I think that was a very big part of it.
JM: Eventually, he gets ALS. You get married in a different state, but learn that in Ohio where you were living that you would not be listed on the death certificate. You decide to sue. At what point did you realize that your case had the potential to be this bigger thing? JO: I'm certain Al Gerhardstein, our attorney, said from the start or close to the start that depending on how this goes, it could really have a much bigger effect than just the two of you.
But to be honest, when John and I filed the suit and started the fight, we were so focused on each other. My life, at that point, barely existed outside the walls of the room where John's bed was. On a very logical, rational basis, I knew in the back of my head, "Well, we're filing this in federal district court and the Supreme Court could be next." But I really didn't think about that a whole lot because I was so focused on still taking care of John. I was much more worried about that than thinking about the big picture.
JM: When he did pass away, did you feel like you were able to mourn for him and the relationship with everything going on? JO: On one hand, yes. One of the great things about the fight continuing after John passed away...he passed away three months to the day we won our first hearing in federal district court. When the Supreme Court accepted it, my life started to really change completely.
But honestly, for me, the better part, the much more effective way to heal was that I got to talk about John every single day. I got to talk about how much I loved him, what a great person he was, what an impact he had on me, and why our relationship was worth fighting for. That helped me with my grieving. I really feel lucky that I had that opportunity.
JM: It was about two years between filing that first court case to going to the Supreme Court. A long legal process like that is expensive. Did you finance it all personally? JO: Our attorney, Al Gerhardstein, is an absolutely amazing man. He's been fighting for civil rights for more than four decades and he made it easy to consider this and to say yes. From the start, our case was done pro bono. He said, "I will represent you and John, and when we win, I will submit a bill to the courts for reimbursement of all of my expenses," which is what happened. He actually got to submit everything to the state of Ohio, and the state of Ohio had to pay those legal bills.
JM: The case that went to the Supreme Court had other plaintiffs from Kentucky, Tennessee, Michigan, and Ohio. Because your team essentially filed first, the entire thing became known as Obergefell v. Hodges. How did it feel to learn that the entire thing would carry your name? JO: Surreal is the short answer. When Al told me that there was the possibility it would be known as Obergefell v. Hodges, assuming the Supreme Court followed their traditional procedure of naming the consolidated case after the lowest case number.
He said, "Just know that it could be known as Obergefell v. Hodges."
When they announced it, it was overwhelming. I also felt guilty because I wasn't the only plaintiff. John's and my story wasn't the only story in this case. There were more than 30 plaintiffs total in the cases from the four states: that was another widower, a funeral director, all the way down to Cooper, a two-year-old boy who was adopted in Ohio by Joe [Vitale] and Rob [Talmas], who live in Manhattan.
I felt guilty because suddenly it went from "there are so many of us" to the focus being on my name, my face, John's, and my story.
JM: Oh, because there are many faces of this movement, but there became just one name of the movement. JO: Correct. I was always worried that the stories of the other plaintiffs in this case, which were equally as compelling, equally as important, would be overlooked, would be forgotten. It did. It raised a fair amount of guilt in me because it wasn't just about me.
One of the other things that I surprise people with is so many people think that "Jim, you must've gone through an audition process. You must have applied somewhere to be a plaintiff." Not at all. It wasn't anything like that. It purely was John and I got married and because we were in the news, Al happened to hear about our story. It just was kismet, synchronicity. It all came together and happened.
It was simply, John and I filed suit to fight for our marriage.
JM: There was this belief at the time that what you were doing was a mistake, that it was too early to bring a case like this to the Supreme Court because they were not going to rule in your favor and it would set back the entire movement. Was that something that you were hearing a lot of? JO: I did not, but Al certainly did get that pushback. After we filed our case and won, he started hearing from national organizations saying, "Al drop this case. This is not the right case. This does not fit our strategy for winning marriage equality. Drop it. Drop it."
Al, every single time he got that pushback, said, "No, my job as John and Jim's attorney is to fight for their rights, to fight on their behalf. I will not drop this. It is the right case for them." He eventually won everyone over to his side, but there was a significant amount of pushback that he experienced. Did I ever experience that firsthand? No. Al was really good about keeping John and me involved when we needed to, but also weeding out the things we didn't need to worry about, especially when John was still alive.
JM: After about three months, the ruling came down and you were at the Supreme Court when it was read. JO: Sitting in that courtroom, listening to Justice Kennedy read his decision. When he started reading the summary, my initial reaction was, "Great, we won." He kept reading and I'm not an attorney. Legal writing isn't always the clearest. I found myself wondering, "Well, did we win? I'm really not sure." But as he continued on, it really just hit me. "Yeah, we did win."
I burst into tears. People around the courtroom were crying. Al, our attorney, was there in the courtroom as well. He told me later. He has never seen so many attorneys crying in a courtroom. Of course, not surprising, my first thought was, "John, I wish you were here. I wish you could experience this. I wish you could know that our marriage will exist for good. Ohio can never erase it." But then it hit me that for the first time in my life, as an out gay man, I felt like an equal American. That was such a powerful realization, such a powerful feeling to have sitting in the highest court in our country.
JM: Afterward, is it like a post-wedding depression? Everything is leading up to this big day and then it happens and you're thinking "OK, now what?" JO: No, I can honestly say I don't think I ever felt that.
Before it came out, I knew that if the decision went the way we wanted, hoped, and expected it to go, that I knew my life was going to be crazy going forward. Even that day, going out under the plaza in front of the courthouse to read a statement to the press, then to do interviews, to get a phone call from President Obama, there was certainly no letdown, no depression that followed that decision because my life changed so drastically.
Most importantly, I just kept running into people across the country who would stop me on the street or in an airplane to shake my hand, to thank me, to hug me, to show me photos of someone they love or of their marriage. That was a gift. It still is a gift every single time that happens. Any depression, post-decision, came about from the people who weren't happy with that decision. Let's say, Kim Davis, everything with the fight for religious freedom to refuse service to the LGBTQ+ community, doctors the ability to say, "No, I will not care for you because of your identity, the person you are, the fact that you're LGBTQ+ offends my vaguely defined but deeply held religious beliefs."
JM: You say that despite winning this case, we still do not enjoy full marriage equality. Can you explain more about why? JO: Across our country, we have the right to get married. We have that constitutional right, but we don't actually enjoy marriage equality. You have public officials who are supposed to serve every single person in their state, who refuse to do that, who won't issue a marriage license, or who won't perform that ceremony in the courtroom because it happens to be LGBTQ+ people.
You have businesses like Masterpiece Cakeshop, who don't want to bake a cake for a same-sex couple. You had a funeral home where the owner of the funeral home decided that Aimee Stephens did not deserve to have her job. She could be willy-nilly fired because she didn't fit the owner's idea of what a man or a woman is.
There are all of these ways that our marriages are not equal. I'm here in Ohio. We still don't have statewide non-discrimination protections. Even with Bostock v. Clayton County, even with all of the wins we've had, a couple can get married on Saturday, and on Monday, they could lose their job. They could be evicted from their apartment, just all of these ways that people like to say, "Nope, your marriage isn't the same, and we don't respect it. We don't think it deserves what other marriages get."
Yes, marriage was this enormous step forward, this great thing that we now have. But even back then, we weren't equal in so many other ways. Marriage was fantastic, but it certainly didn't end our fight.
JM: My fear is that LGBTQ+ rights will look increasingly similar to how abortion access is in the U.S. It's effectively illegal in certain states. JO: That was part of our argument in our marriage case was this is unworkable to say you have these rights and protections here, but as soon as you cross a border, they're gone. That isn't workable. That's what our life will be like if we don't have something at a federal level.
To be honest, I'm still stunned that the Supreme Court ruled the way they did in Bostock v. Clayton County. That gave me hope. The Supreme Court has changed since that decision with the addition of Amy Coney Barrett. She certainly is not our friend, but I'm not as despondent over our rights at the Supreme Court as I might've been at one point. Maybe I'm being foolish in that, but we'll see.
JM: The right to get married affected every single letter of the LGBTQ+ community and we rallied behind it. I don't see that same momentum or urgency being directed in that same way at anything right now. JO: You're right. There isn't really one cause when I think about our community and what we're vocal about currently. It's also one of my pet peeves with the LGBTQ+ community. If I'm demanding equal rights, civil rights for me as a gay man, then I better damn well be demanding those same things for every other member of the LGBTQ+ community. Additionally, I also better be demanding that for every other marginalized community.
If I'm asking for something for myself, I have no right to do that if I'm not asking for it for everyone else. That's one of the things that I just get frustrated about within our community. And just the transphobia and the racism within the LGBTQ+ community, it's offensive, harmful, hurtful. I wish we, as a community, could stop that.
JM: I think the most shocking thing is that, just a few years later, marriage equality now feels so unextraordinary. That change has happened quickly. Do you feel that way too? JO: Oh, absolutely. How many hundreds of thousands of couples have gotten married since June 26, 2015. I love it. The great thing about that is that every time a couple says I do, it's having an impact on their family, in their community. It's just that constant reinforcement that our marriage, our love is no different than any other. It's becoming just part of everyday life as it should be.
People ask me all the time, "Are you worried about the Supreme Court overturning marriage equality?" My response, again, is informed by people much smarter than I am, especially around the Supreme Court. But I say, "No, I'm not." I don't believe Obergefell v. Hodges will be overturned because of those hundreds of thousands of marriages and the fact that gay marriage/same-sex marriage really has become just marriage.
The Supreme Court typically also doesn't take away rights that were previously affirmed by the court. That's what I focus on. I love that same-sex marriage has just become a marriage. It's the way it should be.