Is Obergefell the Pot of Gold at the End of the Rainbow?

Alphonse A. Gerhardstein

As a Gerhardstein I did not grow up Irish. But I did learn that if I catch the leprechaun at the end of a rainbow, I should be able to find his pot of gold. I have seen many rainbows. In fact, the number of rainbows in my life has exploded since we won the U.S. Supreme Court case Obergefell v. Hodges, 576 U.S. ___ (2015). This case established the right to marry for same-sex couples nationwide. It also ensured that same-sex marriages in one state will be recognized by other states in the Union. Even though I have seen many, many rainbows, I have never seen and therefore never caught a leprechaun. This means, of course, that I have never found the gold. But what about the Obergefell decision itself? Is it so fabulous that it is equal to a pot of gold for the lesbian, gay, bisexual, and transgender (LGBT) community? It is pretty darn amazing, but equal to a pot of gold? Hmmm. . . .

First, let’s go back in time and see what we learn from that perspective. For me the trip back is a long one—I have been practicing civil rights law for 40 years. I started representing gay people in the 1980s. My clients included ministers being tossed from the pulpit, lawyers fired after being outed, and ordinary workers fired after the boss discovered they were gay. I lost all these cases (and, yes, I do all my work on contingent fees, even these windmill cases). I even represented my brother’s partner who was fired from a catholic school after my brother moved in with him. I lost that case, too. There simply was no protection from discrimination based on sexual orientation. We did make progress on behalf of government workers using the Equal Protection Clause but not fighting discrimination in the private sector. Then I read about attorney and gay rights advocate Evan Wolfson’s idea that we should focus on the right to marry and not press the nondiscrimination issue. I thought he was nuts. He and his colleagues pursued the issue. After some initial progress, in 2004 they triggered a huge backlash—the adoption of constitutional amendments in 13 states banning same-sex couples from marriage. At this point I thought Evan was really nuts. But I was wrong. In fact, he was brilliant. The legal argument for same-sex couples to enjoy the right to marry was grounded in fundamental principles of due process and equal protection. That did not hit me until I read the June 2013 decision in United States v. Windsor, 570 U.S. ___ (2013). So I did not see that rainbow until it was shining very brightly across the land. In Windsor the Supreme Court held that the federal government had to recognize and give legal effect to marriages between same-sex couples if those marriages were valid in the state where the couple resided.

I met Jim Obergefell and his partner John Arthur shortly after reading Windsor. John was in a hospital bed under hospice care for ALS (Lou Gehrig’s disease). With the help of many friends, they had just flown in a special, medically equipped jet to Baltimore and been married on the airport tarmac. (Follow their trip at tinyurl.com/zcq44o3.) After their exciting marriage, the next big event facing this 20-year couple was going to be John’s death. I shared with them the sad news that Ohio was not going to recognize their marriage, and that John’s death certificate would record him as single and show as blank the “surviving spouse” line. They were angry. They authorized us to sue. I practice with my law partner, Jennifer Branch, in Ohio in the Sixth Circuit, not generally viewed as a progressive legal frontier. We framed the case as a mirror to Windsor, arguing that if the federal government had to recognize marriages between same-sex couples from various states, so did Ohio. It worked. We won. John died shortly afterward, and his marriage to Jim was recognized on his death certificate. A last wish was fulfilled.

We joined forces with the Lambda Legal Defense and Education Fund and the American Civil Liberties Union and brought a follow-up case on behalf of married lesbians and a married adoptive gay couple seeking accurate birth certificates. Won that, too. What fun! As we won more of these rulings, more families celebrated and got excited. Other courts around the country were also ruling in favor of opening marriage to same-sex couples. More fun! More rainbows! Our cases were combined for argument in the Sixth Circuit with pro marriage rulings from Tennessee, Kentucky, and Michigan. The fun ended on August 6, 2014, when the Sixth Circuit reversed our wins and affirmed the one-man, one-woman definition of marriage.

The stakes were high as we collaborated with brilliant lawyers from around the country on the consolidated cases and briefed, argued, and then gathered for the Supreme Court decision on June 26, 2015. The decision was thrilling and momentous. Even the White House was lit that night as a rainbow. Jim Obergefell and I came back to a rainbow-draped Cincinnati and rode together in the pride parade on the back of a marriage plaintiff’s convertible! A book chronicling this once-in-a-lifetime case is now out (tinyurl.com/h6y5r7k) and a movie is even in the works (tinyurl.com/jz6b95n)!

See the leprechaun yet? See his pot of gold with a resolution for all LGBT problems at the end of these rainbows? Unfortunately, if I filed my old discrimination cases today for my brother’s partner, for the lawyer who was fired after he was outed, or for other victims of private discrimination, Obergefell would not compel a win for them. In fact, only about 22 states and the District of Columbia have anti-discrimination laws that include sexual orientation. Five states provide more limited anti-discrimination protections. Ohio has no protection for gay workers. So I would still lose all those cases. Was I right then to dismiss Evan Wolfson and his crazy idea about same-sex couples winning the right to marry? No. I was wrong. As the articles in this issue demonstrate, there is much work to be done to win true and thorough equality for LGBT individuals and couples. But winning the right to marry is huge in itself. The LGBT community has been fully ushered into the mainstream institution of marriage. The right to marry does mean that rights involving paternity, taxes, inheritance, child custody, government and insurance benefits, and other issues are dramatically expanded. But there is more to do.

So does the decision help at all on issues beyond the right to marry? Well, let’s look at the decision itself. Many lawyers cabin a decision to a single result and rush to the next question. That is okay if you are only talking about holdings. But Supreme Court decisions are often much more than their holdings. Obergefell is no exception—it is certainly much more than the holding. Not only does the decision thoroughly explore the nature of marriage and its role in our society, it also thoroughly explores the nature of the relationship enjoyed by same-sex couples, reminding us that the Court has long viewed these relationships as deserving of the utmost respect and dignity. Justice Anthony Kennedy traces the long and troubling history of discrimination suffered by gays, including the period when gays were considered mentally ill. Writing for the majority, he explains that this history is grounded in prejudice and is wrong: “Especially against a long history of disapproval of their relationships, th[e] denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.” Finally, Justice Kennedy instructs that same-sex couples are deserving of full rights to due process and equal protection, concluding in lofty and inspiring terms (that even reference Jim and John):

In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. 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.

These profound words are part of the opinion that should be referenced as we tackle enduring problems of discrimination and mistreatment on behalf of LGBT clients. They form a base from which we should challenge legislators, courts, and others to finally see the duty to treat members of the LGBT community with dignity and equality. Then the rainbow will shine brighter, and maybe we will catch the leprechaun and find his gold.

Alphonse A. Gerhardstein

Alphonse A. Gerhardstein is a founding partner of Gerhardstein & Branch Co. LPA in Cincinnati, Ohio. He was lead counsel representing Jim Obergefell before the U.S. Supreme Court in Obergefell v. Hodges.