• Jim Obergefell holds a picture of himself and his partner, John. ( Maddie McGarvey/For The Washington Post via Getty Images)
We sat down with Jim Obergefell, the lead plaintiff in the Supreme Court case last year that brought same-sex marriage to America.
By
Ben Winsor

18 Nov 2016 - 2:21 PM  UPDATED 18 Nov 2016 - 2:21 PM

In 1992 Jim Obergefell went to a local bar in Cincinnati, Ohio. He remembers seeing a man at the bar – tall, blonde and slim – who his friend introduced him to.

“But I was still closeted,” Jim tells SBS Sexuality, “so nothing happened.”

Soon after, Jim left Cincinnati for graduate school, but on a weekend visit home he went back to the bar, “and that same tall blonde man was sitting at the bar again,” he says.

This time they spoke somewhat flirtatiously.

“He made some comment about how I would never go out with someone like him,” Jim says.

“Somewhere I got the courage to say ‘How do you know, you've never asked?’” he recalls with a grin, adding: “He still never did".

It wasn’t until the end of that year, when Jim was back in Cincinnati for New Years, that he finally managed to seal the deal with the tall blonde from the bar.

They ran into each other again at a New Year’s party.

“I went to the party and I never left,” Jim says with a smile, “for John and I, it was love at third sight.”

Jim moved into John's share-house just weeks into the New Year.

John and Jim spent the next two decades together.

They spoke about marriage, they talked about children, but they never went through with either—neither their marriage nor their parenthood would be legally recognised.

Ohio’s statehouse voted to ban same-sex marriage in 2003, a restriction that also blocked recognition of marriages performed out of state.

In 2004, Ohio voted to endorse a constitutional amendment that not only blocked same-sex marriage, but also banned the government from instituting civil unions or other ‘separate but equal’ systems.

“We took that very personally,” Jim says.

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But if those were crushing blows – as their neighbours voted to invalidate their relationship – it was news in 2011 which made things much worse.

John had developed a noticeable limp, and at Jim’s insistence he went to a specialist.

Jim had been researching what it could be online, and had come across an unlikely worst-case scenario.

His greatest fear was that the cause could be ALS – a fatal neurological disease which destroys nerve cells in the brain and spinal cord.

Against Jim’s protests, John insisted on going to the doctor alone.

After the tests came back, he broke the news.

“It’s ALS.”

Most people diagnosed with ALS live for three to five years, the doctor had explained.

John could expect progressive muscle weakness, cramps, twitches, and slurred speech – and it was only months before things became noticeably worse.

John started losing control of his left foot, then his left leg, then his left hand—Time was not on their side.

John started wearing a leg brace, which he resented. He lost control of his left shoulder, left arm, then his fingers.

Jim took John to a tailor and had new shirts made with Velcro. When John could no longer use a shower seat, Jim climbed in and held him.

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For Jim, the disease was progressing much faster than he feared.

He would take himself to an empty room and break down in tears when it was all getting too much.

John was eventually confined to an electric wheelchair – large and cumbersome, he hated it.

“I don't want to go out in that thing. I feel like a spectacle,” he told Jim.

After just two years, John was confined to a bed – with a buzzer to call for Jim’s help.

On June 26, 2013, John called from the bedroom for Jim to come and watch TV.

The Supreme Court was announcing its verdict on a constitutional challenge to the Defence of Marriage Act, a law banning recognition of same-sex marriage at a federal level.

As they watched the screen together, hand in hand, the Supreme Court struck down the law.

The Federal Government could no longer refuse to recognise same-sex marriages performed legally in the states where it was permitted – there was no just reason for such a ban, the court held.

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“DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others,” Regan appointee, Justice Anthony Kennedy wrote.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” the judgment said.

There, in front of the TV, Jim kissed John lightly.

“Let's get married,” he said.

John said yes.

But proposing turned out to be the easy part. The couple still needed to travel to a state which had lawful same-sex marriage – but John hadn’t been out of the house in four months.

At first Jim thought of New York, but both partners had to be present to file the paperwork in person.

Jim quickly settled on Maryland, where just one partner had to be present to file the paperwork.

In John’s condition, the logistics were a challenge – the couple had to charter a medical flight.

It was a quick stopover though – John and Jim got married in the plane, on the tarmac.

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“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,” Jim said in his vows.

“As you recently said, it was love at third sight. And for the past 20 years, six months and 11 days, it's been love at every sight,” Jim said.

The couple were ecstatic, and despite there being no honeymoon, there was a week of celebration and wedded bliss with the couple calling each other 'husband' at every single opportunity – to an almost comical degree.

Their story was shared by the Cincinnati Enquirer, who had sent a journalist on the plane to film the occasion.

Shortly after, a mutual friend of the couple was at a dinner party with Al Gerhardstein, a civil rights lawyer.

She showed him the video – proud of her friends and moved by their story – but Gerhardstein’s mind went straight to the legal issues.

Despite the marriage and the Supreme Court decision, Ohio still wasn’t going to recognise Jim on John’s death certificate—It would be marked 'unmarried'. Their relationship would be erased.

Gerhardstein wanted to challenge the law, but he needed a plaintiff.

With some hesitation, he got in touch with Jim.

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The pair had just been married and John’s ALS was in an advanced, debilitating stage – but Jim was eager to help.

Asked if it was a tough decision - to spend what could be the final months of John’s life in what could have been a protracted legal battle - Jim says that they "both thought it was the right thing to do.”

“For me it was part of living up to my promises and commitments – you know I promised to love, honour and protect him, and for me to fight for our marriage and to make sure his final record as a person was accurate – that was part of my living up to what I promised him,” he says, “so it was a really easy decision to make.”

At that stage it also wasn’t a major drain on his time, Jim says.

“There were conversations with our attorney, but the testimony was all done in writing, so I was never in court being cross-examined. I wasn't going to be taking depositions. So the time commitment was relatively minor, which helped,” Jim says.

But Jim Obergefell did take the stand – only a few days after meeting Al Gerhardstein – as the couple filed suit against the State of Ohio in Federal Court.

He read a statement about his marriage to John.

With the case to push for the recognition of same-sex marriage set to take some time, Al Gerhardstein requested an emergency injunction to suspend Ohio’s anti-same-sex marriage laws so Jim could be recorded on a potential death certificate.

Ohio argued that an emergency injunction was not necessary, because if the law was overturned in later proceedings then the death certificate could be changed.

Since John would be dead anyway, it wouldn’t cause him any harm, the lawyer said.

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Lawyers for the City of Cincinnati refused to defend the law, saying they agreed with the couple’s case.

Gerhardstein argued that Ohio was willing to recognise marriages performed in other states between cousins or minors, but not between same-sex couples.

“That was frustrating and hurtful,” Jim recalls. “Immediately they were recognised when those people crossed into Ohio – it was hurtful and it was painful,” he reiterates.

The couple’s lawyer argued that in the light of the previous Supreme Court ruling, Ohio’s discrimination was unconstitutional.

Even if a majority of citizens had voted for a law, that didn’t make it valid – Gerhardstein argued – it didn’t make it constitutional.

When asked about Australia’s divisive plebiscite debate, Jim states that for him, marriage is a human rights issue, not a legislative one.

“During the course of our case in the States – part of their argument at every single point along the way was that the people of Ohio – the people of Kentucky, Tennessee, Michigan – they are voted for these state constitutional amendments,” he says. “So why should we go against the will of the people?”

“In the States and we have the Bill of Rights – which you don't have something equivalent here – but every time that argument came up our attorney’s response immediately was ‘the surest way to bridge the rights of a minority is to allow the majority to vote on it’,” he says.

“For me that's what it all comes down to – if there are rights that are guaranteed, that every person should enjoy, the worst possible thing you can do is put that up for a public vote.”

The court acted on the initial request quickly, the very same day the judge granted an injunction so that the death certificate could be filled out accurately.

The bigger battle was still to come though—the issue of whether Ohio’s law was constitutional still needed to be resolved.

But before that would happen, John died after just three months of marriage.

John had said that he never wanted a funeral, so Jim organised a party, instead.

In line with his wishes, Jim scattered John’s ashes along with his mother’s – “so we can travel the world together.”

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Two months later, Jim returned to court for the rest of the case, fighting back tears as the judge offered his condolences. A week after that, the judge returned with his final decision.

“Once you get married lawfully in one state, another state cannot summarily take your marriage away,” Judge Black wrote.

Jim had won, but John wasn’t there to see it.

The Obergefell’s case was quickly overturned on appeal, but the case was then joined by couples from Michigan, Kentucky and Tennessee – aided by national civil liberties and LGBT+ legal groups – all determined to push for a third hearing, this time in the Supreme Court of the United States.

Combined with the other couples, this was no longer just a case about death certificates or interstate marriage – it was a case about same-sex marriage nationwide.

On June 26, 2015 – exactly two years after Jim had asked John to marry him – Jim Obergefell lined up outside the Supreme Court awaiting the delivery of the final verdict.

He was nervous, but he had a good feeling.

June 26 was the same day the 2013 decision had come out, and the same date the Supreme Court had earlier struck down anti-sodomy laws.

The entrance slips were printed on lavender paper – Jim noted – normally they’re orange.

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He remembers listening to Justice Anthony Kennedy read out the judgment.

“Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together,” Justice Kennedy said, going on to quote Confucius and Cicero.

“Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.”

“By statute, [Jim and John] must remain strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time’,” he said.

Jim remembers being elated that things seemed to be going their way, but was worried he would get lost in the court’s legal language.

Kennedy’s words, however, were soon crystal clear.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he said.

“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right,” he said.

For Jim – and millions of other Americans – it was a moment of validation.

“You know my first thought was to wish John were there to experience it, and to know that we won,” Jim tells me.

“Then I immediately realised for the first time in my life as an out, gay man - I felt like an equal American,” he says.

“It was very much a sense of validation – a sense of respect and dignity, which was what we were asking for. It was an amazing thing to sit there, in that courtroom, and to hear the highest court in the land say ‘Yes, John and Jim, you matter and you exist and we recognize you. We see you.’

“And the same thing for all those other plaintiffs in our case, you know, the couples the parents the children – it was an incredibly meaningful experience,” he says.

Even then, in the courtroom, the proceedings were punctuated by noise from the hundreds who had gathered outside to celebrate.

Jim remembers wanting nothing more than to go outside and join them.

“To just be out in the midst of these thousands of people celebrating and feel a thick sense of joy in the air—it was a beautiful day,” he says.

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I asked Jim how he felt reading the minority decision—the court was narrowly split and delivered four dissenting opinions.

Justice Scalia’s judgment, in particular, was scathing.

The majority judgment would “diminish this Court’s reputation for clear thinking and sober analysis” he wrote, causing the Supreme Court to “descend from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

But that never bothered Jim.

“I have to be honest, I never read it,” he tells me.

“The Chief Justice read his dissent – I ignored it because at that point I didn't care. We won the majority – it didn’t matter that it was five to four or six to three. It didn't matter.

“What I was thinking the entire time the Chief Justice read his dissent was, ‘Let us go – I want to go and join the celebration,’” he says.

Jim wasn’t aware at the time, but the win would be felt around the world.

Friends from Hong Kong and Singapore sent him messages about how much it meant to people there.

He says it reminded him of the impact America can still have.

It may not have changed any other laws around the world, but he says it restored an element of America's moral standing.

For one brief moment, LGBT+ people around the world were united behind a triumph.

Love Wins. 

We caught up with Jim Obergefell in an event with Ian Thorpe hosted by Twitter Australia. Obergefell is in Australia to promote his book ‘Love Wins’.

You can connect with the author, Ben Winsor, on Twitter and on Facebook.