As time and time again our opponents try to break the bonds of love. Experience 43 years of romance and heartbreak. Until we arrive at that moment just outside the Supreme Courthouse. And we’ll go ahead and spoil the end because in this episode Love Wins!
Today is a happy day in queer U.S. History. On June 26, 2015, same-sex marriage was federally legalized in the United States. Now often times we hear that phrase linked to the words “marriage equality”. But the truth is, we’re not quite there in terms of equal marriage rights for everyone. We’ll discuss how and why later in the episode. But for now, we say congratulations to all the same-sex couples and queer couples who were able to FINALLY marry their partners. And we’re going to credit our main source of information right up front, the book Love Wins by Debbie Cenziper and Jim Obergefell. Make sure you check that out if you can. We will drop the reference again at the end of the episode. So, let us launch into the tale of love triumphing over hate.
Jim: “We’ve been together since December 31, 1992. And it’s been my world. It’s been my life. We’ve been in a committed relationship since that time. And in our eyes we are married. Our families love us. Our families consider us married. Our families and friends treat us as a committed married couple”
AL: “Now you’ve been together and been a couple for over twenty years. Why is it so important for you to be married?”
Jim: Well, I think that’s the same for any couple who decides to get married, no matter how long they’ve been together. We want our country, our state, to recognize our relationship and to say, ‘Yes. You matter. You were married. You have the rights, the benefits, and the responsibilities that go with that, just as any other couple.’ With John near death, it is very important to us to have our relationship formalized and recognized by our government.”
AL: “Now I don’t want to belabor this, but for the purpose of records, we need some sense of how imminent, if you know, John’s passing might be.”
Jim: “I would say days, maybe weeks if we’re lucky. Last week, the RN with our hospice service pulled me aside after their visit with John to tell me I should start preparing because she believes the end is close.”
AL: “Now, there’s a box – number 10 – where is says ‘ Marriage at Time of Death’. Did I read that correctly?”
Jim: “Yes, you did.”
AL: “And if this court does not act, how will that be filled in?”
AL: “And the next box, ‘Supervising Spouses Name’. If this court doesn’t act, how will that be filled in?”
Jim: “It will remain blank.”
AL: “How should it be filled in?”
Jim: “James Obergefell. My name should be there…. Your honor, during our twenty years together, John and I have taken care of each other during good times and bad, for richer or poorer, and in sickness and in health. For the past two years, I have 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 there are times when words are not 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 unmarried 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 twenty-year relationship and legal marriage. Not to do so is hurtful, and it is hurtful for the rest of time.”
What you just heard was Jim Obergefell’s statement to Ohio’s district court on July 22, 2013. He and his husband John had traveled to Maryland just a few weeks earlier in order to obtain a legal marriage license. Maryland was one of a few states, at the time, that had legalized same-sex marriage. Upon returning home the spouses filed their claim with the Ohio registry. However, they were denied as Ohio did not recognize out of state, same-sex marriage licenses. So Jim and John had been forced to sue the state on grounds of discrimination. As is the case when one sues the state, Governor John Kasich became the lead defendant and the case was marked Obergefell vs Kasich.
The fight for marriage equality has been one of the most fundamental goals of the LGBTQ movement for the last 30 years. And really even earlier than that if you track the individuals who filed without the backing of legal and civil rights organizations. The first gay couple to apply for a marriage license were Michael McConnell and Jack Baker on May 18, 1970, in Blue Earth County, Minnesota. The couple had been pretty clever. Jack changed his name to a gender-neutral name – Pat Lyn. And then Michael went to file for the license alone. The two men were married and in February of 1971, they received their official notice from the Social Security Office. But when the McConnells sent in their marriage license to be filed on public record, the so-called “mistake” was caught. The license was never recorded. Without a public record – proof of marriage – the couple could not collect any of the legal benefits.
Soon news stories of two homos trying to wed ignited a firestorm across the country. Mike and Jack sued the clerk for discrimination. Claiming that Minnesota law made no reference to gender in regards to marriage. The case – Baker vs Nelson (Nelson being the last name of the court clerk) – made its way through the lower courts up to Minnesota’s Supreme Court. Every judge sided with the country clerk and soon the case died. But the marriage license remained on file and would sit there for the next 45 years. And yes, Jack and Michael would remain together, waiting for their license to be approved. But in the meantime, homophobes wrapped their panties in a bunch and began a crusade to ensure gay marriage was NEVER legalized. Minnesota lead the charge by declaring in 1971 “the institution of marriage as a union of man and woman uniquely involving the procreating and rearing of children within the family is as old as the book of Genesis.”
Maryland was the first state to make a separate, official ban on same-sex marriage. Declaring in 1973 that “Only a marriage between a man and a woman is valid in this state.” Over the next 20 years, the majority of the other 50 states would follow suit. Adding amendments to their constitutions and clarifying phrasing to make it impossible for same-sex couples to marry. Because of the limited visibility and freedoms of transgender individuals – meaning, the inability to change their assigned gender at birth on their legal records – many trans people faced the same issues. Across the country, while laws criminalizing homosexuality dropped, laws prohibiting marriage sprung up in their place.
In 1984 the crusade to “save” marriage was thrown off by one of the most beautiful love stories we’ve ever told. In November of 1983, Sharon Kowalski was heading home one evening to her partner of 4 years, Karen Thompson. The two women had little way for their relationship to be legally recognized. Civil Unions were not yet granted to queer couples, and of course, marriage equality was decades away. However, the women had a commitment ceremony on December 17, 1979, and exchanged wedding rings. They also were able to make each other their insurance beneficiaries. So on this evening, Sharon headed home to her wife, even though the State only saw them as roommates. But before she arrived, she was struck by a drunk driver.
After several days in a coma, the doctors pronounced that Sharon had brain damage. She would remain in a wheelchair the rest of her life and have the mental capacity of a 46-year-old. Karen immediately petitioned the state to allow her to be Sharon’s guardian. Sharon’s father, Donald – who claimed he had NO idea that Sharon was a lesbian – petitioned for custody as well. Donald was awarded custody but Karen was to retain some visitation rights. However, in 1985 Donald cut Karen off and refused to let her see her wife Sharon. The Kowalski’s even got a physician to write a court letter stating: “Visits by Karen Thompson at this time would expose Sharon Kowalski to a high risk of sexual abuse.
The story of a lesbian woman fighting for custody of her disabled lover soon swept the country. For the next 7 years, Karen would fight for her right to be in Sharon’s life. Her story especially moved a community, heavy in the throes of the AIDS epidemic. All across the country, queer individuals were watching their partners die. And often after this devastating loss, they were then faced with the reality that they had no say in their loved one’s possessions, burial, or legacy. The story of lesbian fighting for her marriage to be seen pulling at their hears. Cities began to host National Free Sharon Kowalski Day. LGBTQ organizations, including Lambda Legal, rallied around Karen. Tom Stoddard, of the gay law organization, said of the case
“[Karen’s case] has touched the deepest nerve in the gay community across the United States because it triggers the two deepest fears of every gay person: a fight among loved ones and denial of personal wishes.
Karen and Sharon were making people realize the issues of denying same-sex partners the same benefits as other couples.
As Karen Thompson, and Michael McConnell, and Jack Baker fought on, others were joining in the march for marriage equality. Berkley California became the first city to extend domestic partnerships to same-sex couples. On October 10, 1987, queer individuals literally marched on Washington Hall. 2,000 same-sex couples got married in the largest mass wedding in American history. By 1992, several private businesses were beginning to extend spousal benefits to queer couples who had been in long term relationships. During this time Evan Wolfson, a young Harvard graduate who was working at Lambda Legal, was requested to assist on a case in Hawaii.
Nina Baehr and Genora Dancel along with two other couples were suing the state of Hawaii for the right to marry. With Evan’s help, they crafted an argument that caused the Hawaii Supreme Court to rule that marriage discrimination was unconstitutional. This seemed like a massive win for gay rights, setting a precedent that could be used in the rest of the 49 states. Evan Wolfson was incredibly encouraged. He had been speaking out and working for marriage equality since his third year in law school. While most people had laughed at him, and others had argued it just wasn’t the right time, Evan had continued to work towards victory. He thought that Hawaii’s ruling was just the break needed. He was further encouraged when an appeals court upheld the ruling in 1996 in a landmark ruling.
Sadly, the victories wouldn’t last for long. Anti-gay opponents began to launch a fear campaign in Hawaii and other states. They funneled millions of dollars into false propaganda which drove up the hysteria against LGBTQ communities. The movement had been making great progress in the early ’90s. Karen Thompson had even been awarded guardianship of her wife Sharon in 1991. The court’s decision came on December 17, exactly 12 years after Karen and Sharon had wed. To this day Karen still takes care of Sharon, though Karen has remarried. But while that victory and Hawaii’s ruling had been a spark of light, they were quickly extinguished. On May 12, 1995, the Sixth Circuit Court of Appeals ruled that it was permissible for State governments to discriminate against LGBTQ people.
The following year, 1996 – an election year – President Clinton came out in opposition of gay marriage. He told the Advocate
I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or considered.”
That same year, anti-gay opponents pushed through DOMA (Defense Of Marriage Act) which described marriage as between a man and a woman and banned same-sex marriage on a federal level. Clinton promptly signed the bill into law on September 21, 2996.
Following the ruling, an amendment banning same-sex marriage was put on the ballot for Hawaii’s 1998 election. The citizens of the Aloha state voted in favor of the amendment and LGBTQ Hawaiians were once again forbidden to marry. Alaska along with other states would follow suit, eventually, 31 of the 50 states would add amendments that prohibited same-sex marriage. While several states, such as Vermont, allowed queer couples to receive domestic partnerships; the amendments further insured that queer couples could never have their relationships equally recognized.
Evan Wolfson was not a man to be beaten. By now he had earned the nickname “The Paul Revere of Gay Marriage”. Wolfson began organizing various groups around a single goal titled The Marriage Resolution. Wolfson joined forces with attorney Mary Bonauto and together they went on an all-out campaign for marriage equality. While one state after another was slamming the door on gay marriage, Evan and Mary refused to back down. They were somewhat encouraged by events happening around the world. In 2001, the Netherlands became the first country to legalize same-sex marriage. By 2003, several other countries and regions around the world had legalized same-sex marriage or civil unions with the equivalent status of marriage.
That same year, Evan Wolfson, Mary Bonauto, and several others launched the Freedom To Marry Foundation, with a $2.5 million dollar grant. Wolfson stated in his blueprint for Freedom to Marry:
“Shimmering within our reach is a legal structure of respect, inclusion, equality, and enlarged possibilities, including the freedom to marry. Let us build the new approach, partnership, tools, and entities that can reach the middle bring it all home.”
The plan was simple. Don’t go for a federal repeal; instead, win enough states – and hearts and minds along the way – that the U.S. government has no choice but to grant federal approval.
Despite an increasing uphill battle, Freedom To Marry charged forward. As an anti-gay marriage amendment was introduced to Congress, which would forever alter the U.S. Constitution, Evan headed to Massachusetts. In June of 2003, the Supreme court struck down sodomy laws. In July the Vatican began a campaign against same-sex marriage. In August a poll was released which showed that most Americans opposed same-sex marriage. In October, President George W. Bush came out against gay marriage. But on November 18th, in the case of Goodridge vs The Dept. Of Health, the Massachusetts Supreme Court ruled in favor of same-sex marriage.
By 2004 – just one year later – a new poll showed the support for same-sex marriage increased. However, 59% of the public still supported an amendment that banned same-sex marriage. Later that year, New York and Seattle ruled in favor of same-sex marriage and the amendment to ban gay marriage failed in the Senate. But consequently, Missouri, Oregon, and California all struck down measures for marriage equality. By the end of 2004, 11 states had set bans on same-sex marriage. In 2005 Canada voted in favor of marriage equality while states in America, especially California, were in the throes of constant upheaval. It seemed that every time one state would legalize marriage equality, three would ban it.
For the next 10 years, the nation would be a yo-yo of marriage bans, approvals, vetoes and dropped bills. On June 26, 2013, in the United States vs Windsor, the Supreme Court struck down DOMA. While over 30 states had now legalized marriage equality, there were still a few holdouts. During this time, Jim and John Obergefell got married in Maryland in 2013 before returning home to Ohio. A few weeks later as John lay on his death bed, Jim headed to court to ensure his husband would not die declared a single man. When the Obergefell’s request was denied, the case headed towards the U.S. Supreme court. Along the way, Evan Wolfson and his team picked up several other cases across the U.S. Henry vs Wymyslo, Love vs Beshear, Bourke vs Beshear, and Taco vs Haslam. The high court consolidated these cases with another DeBoer vs Snyder. Which was a lesbian couple suing the State of Michigan for adoption rights.
Oral arguments were heard on April 28, 2015, with the plaintiffs represented by Mary Bonauto and Douglas Hallward-Driemeier. In a 5-4 decision, the United States Supreme Court legalized same-sex marriage on June 26, 2015. Ironically, the date was the 2nd anniversary of the courts strike down of DOMA and the 12th anniversary of Lawrence vs Texas which repealed the sodomy laws. June 26th is truly a day of queer victory.
While we do want to celebrate that same-sex marriage is now legal, we also want to point out we don’t have full marriage equality. There are several groups still struggling for full recognition. This includes polyamorous couples who would like to marry. As well as disabled individuals who usually lose most, if not all, of their benefits if they marry. In addition, the majority of countries around the world do not allow same-sex marriage and 78 still have anti-sodomy laws. We have been fortunate in our fight in America, but let’s not forget those who still need us to continue fighting.
Your recommended resources are Love Wins: The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality by Debbie Cenziper and Jim Obergefell. And the documentary The Freedom To Marry. Bonus research, Loving vs Virginia documentary on Amazon. This was an inter-racial marriage case which was later cited as precedence for same-sex marriage equality.
- Love Wins; The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality by Debbie Cenziper and Jim Obergefell
- Timeline of cases – https://en.wikipedia.org/wiki/Obergefell_v._Hodges
- Gay Marriage – https://gaymarriage.procon.org/view.timeline.php?timelineID=000030
- Michael and Jack – https://www.nbcnews.com/feature/nbc-out/after-decades-long-legal-battle-gay-couple-s-1971-marriage-n980471
- Karen Thompson – https://www.nytimes.com/1991/12/18/us/disabled-woman-s-care-given-to-lesbian-partner.html
- Mass wedding – http://mallhistory.org/items/show/532
- Documentary – The Freedom To Marry available on Netflix
- Freedom To Marry – http://www.freedomtomarry.org/pages/how-it-happened#section-13