Obergefell v Hodges, 2015

This is the decision that said the fundamental right to marry is protected under the 14th Amendment. How did it come about? What was the status of marriage before June of 2015? And why is the government so involved in the marriage business anyways? This episode features the voices of Melissa Wasser from the Project on Government Oversight and Jim Obergefell, the named party in Obergefell v Hodges. CLICK HERE: Visit our website to see all of our episodes, donate to the podcast, sign up for our newsletter, get free educational materials, and more! To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. Check out our other weekly NHPR podcast, Outside/In - we think you'll love it! Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:01Speaker 00

  At Farmers, we go out of our way to keep you in the know.

• 0:04Speaker 01

  Like by singing, everything for emphasis.

• 0:07Speaker 00

  That, and by providing you with coverage on a page, an easy-to-understand language, so you know what's covered and what's not.

• 0:14Speaker 01

  No confusing legalese that no one gets.

• 0:17Speaker 00

  In full transparency, we do have to put a disclaimer at the end of this ad, though. Just being honest, that's what you get when...

• 0:22Speaker 01

  You have Farmers.

• 0:25Speaker 02

  Learn more at Farmers.com. Underwritten by Farmers Truck or Fire Insurance Exchanges or Affiliates. Products not available in every state.

• 0:30Speaker 03

  I've been married twice. The first time I was very young and closeted, in part because of all the homophobia and bigotry and stuff like that.

• 0:39Nick Capodice?

  This is Jackie Fulton, a producer here at Civics 101. And this is Fendel Fulton.

• 0:44Speaker 05

  I'm Fendel Fulton. I am Jackie's other half.

• 0:48Nick Capodice?

  Jackie and Fendel got married at Odeon Point in November of 2018.

• 0:53Speaker 03

  I remember when I went with my now ex-husband, and we're doing the paperwork and stuff, and it asked if we were cousins or if we were blood-related. I thought that was kind of funny. But it was like, super easy to fill out, you know, no problem. And so whenever Fendel and I went to do the paperwork, it asked, who is Person A and who is Person B? And I was like, well, how do we know? Like, I guess Fendel could be Person A because they're older than I am.

• 1:25Speaker 05

  Yeah, I took the A role. Jackie took the B role, but that's not indicative of our actual roles in life.

• 1:34Nick Capodice?

  You're listening to Civics 101. I'm Nick Capodice.

• 1:37Speaker 03

  And I'm Jackie Fulton.

• 1:38Nick Capodice?

  And today, we're learning about one of the most recent landmark Supreme Court decisions. So recent, it is not yet required in many states' civic curriculum, though I imagine it will be soon. The decision that made marriage, marriage. Obergefell v. Hodges, 2015.

• 2:00Speaker 06

  A Supreme Court ruling announced minutes ago extends same-sex marriage in America. The justices ruled five to four that states--

• 2:09Speaker 03

  Before we get started, I just want to know why, Nick. Why is the government involved in marriage in the first place?

• 2:14Nick Capodice?

  Well, Jackie, as you know, marriage was not always about two people who loved each other. Before the late 1800s, the explicit goal of marriage was usually to acquire useful in-laws, pass down property, and gain political and economic power. But there's a shift around the turn of the century with the rise of wage labor, where states begin to use marriage as a way to give out resources, like healthcare or social security. And frankly, they do this because it's cheap to do it that way. Instead of giving everyone those resources, just give them to the breadwinner in a family via an employer and extend them to your spouse and children.

• 2:54Speaker 03

  Okay, and so a same-sex union flies in the face of this system, and therefore LGBTQ-plus couples who live together did not get those resources.

• 3:04Nick Capodice?

  They did not. Same-sex unions have existed since the beginning of recorded times, as has homophobia. But in the United States, LGBTQ-plus couples have lived together in relationships akin to marriage in every facet, save the legal benefits. The only way a couple could get those benefits, and this happened predominantly in the 1970s to the 2000s, was for one partner to adopt the other.

• 3:30Speaker 03

  How far back do we have to go to understand marriage equality laws before June of 2015?

• 3:36Nick Capodice?

  The first challenge to the legal definition of marriage being between two people of the opposite sex was in the 1970s.

• 3:43Speaker 07

  Baker versus Nelson, which is a 1971 case out of the Minnesota State Supreme Court.

• 3:49Nick Capodice?

  This is Melissa Wasser. She's policy counsel at POGO, the Project on Government Oversight. James McConnell and Richard Baker applied for a marriage license in Minneapolis, and the district court clerk refused to grant it because they were both men. And it went up to the Minnesota Supreme Court.

• 4:06Speaker 07

  So even though that's a state Supreme Court, Baker, in that case, ended up appealing to the Supreme Court? And the Supreme Court had a one-line order that said this appeal did not raise, quote, "a substantial federal question," and so they couldn't take it.

• 4:22Nick Capodice?

  It was dismissed. None of the lawsuits in the 1970s seeking recognition of marriages between gay and lesbian couples were successful. And so the next big milestone is in 1991 in Hawaii.

• 4:36Speaker 07

  The Hawaii Supreme Court had a case that said that their state's prohibition on same-sex marriage might be unconstitutional.

• 4:44Nick Capodice?

  In a case called Behr v. Lewin, the Supreme Court of Hawaii sent their verdict back to a lower court, asking them to demonstrate that denying marriage licenses to same-sex couples, quote, "furthers compelling state interests."

• 4:58Speaker 03

  Oh, so basically they're saying, prove that preventing marriage of same-sex couples is good for Hawaii.

• 5:04Nick Capodice?

  Right. And they formed a commission to do just that. Two commissions, actually. The first commission failed to give a report, but the second commission reported they'd studied the benefits of marriage in public policy, and they recommended Hawaii Open Marriage to All.

• 5:19Speaker 03

  Why did they fail to give a report? What was up with that?

• 5:22Nick Capodice?

  Honestly, they just couldn't get their stuff together.

• 5:25Speaker 03

  You had one job.

• 5:30Speaker 08

  In the mid-'90s, there was that case making its way through the courts in Hawaii. And John's stepmother at the time actually said, you know, if this happens, if they make marriage a possibility in Hawaii, I'm going to take the entire family there so you guys can get married.

• 5:45Speaker 03

  Who is that?

• 5:47Speaker 08

  I'm Jim Obergefell, the named plaintiff in Obergefell v. Hodges, the landmark Supreme Court marriage equality case.

• 5:53Speaker 03

  The Obergefell?

• 5:55Nick Capodice?

  The very same. He and his partner, John Arthur, had been together some time when this all happened in Hawaii, when it seemed like marriage equality would be possible.

• 6:05Speaker 08

  Well, that never happened. And John and I talked about it, and we both agreed that for us... We didn't want to just have a symbolic ceremony. We had friends who, you know, had ceremonies in Ohio and elsewhere. But for us, that just wasn't what we wanted. We wanted to marry only if it actually carried legal weight.

• 6:25Speaker 03

  Now might be a good time to explain civil unions.

• 6:28Nick Capodice?

  All right, there were different rules in each state regulating same-sex unions. But while couples all over the country would perform civil unions for family and friends, these couples did not receive the state-sanctioned benefits of marriage. And we're talking inheritance rights, huge tax benefits, insurance, social security. And Jim and John wanted those benefits.

• 6:50Speaker 03

  Yeah, of course they did, like everybody else.

• 6:52Nick Capodice?

  This court case in Hawaii caused a backlash against marriage equality. And it brought the topic into the national spotlight. Battle lines were drawn. States hastily passed legislation mandating marriage as something between one man and one woman.

• 7:08Speaker 07

  Not just in Hawaii, it was also at the federal level, which ended up with the enactment of the Defense of Marriage Act, OrdoMA. And that was signed into law by President Bill Clinton in 1996.

• 7:22Speaker 09

  Obviously, the results of this bill will not be to preserve anything, but will serve to attack a group of people out of various motives and rationales.

• 7:34Speaker 10

  Humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength, and health of human society.

• 7:47Nick Capodice?

  That was Democratic Senator John Kerry speaking against the Defense of Marriage Act, and also Democratic Senator Robert Byrd speaking for it. It passed resoundingly in the House and the Senate. With support from both parties, only 14 senators voted against it.

• 8:02Speaker 07

  The Defense of Marriage Act, OrdoMA, was a federal law that defined marriage for federal purposes as the union of one man and one woman. So that meant anything that federal benefits dealt with. So insurance benefits, social security, survivor benefits, filing a joint tax return. If you were married for those purposes, it was between one man and one woman. And so that was section three of DOMA. Section two of DOMA was that states were allowed to refuse recognition of same-sex marriages that were granted from other states and other jurisdictions. So think like Canada, or if other states had same-sex marriage laws, it wouldn't transfer

• 8:45Speaker 07

  state to state like other benefits did.

• 8:48Nick Capodice?

  In the decade after Hawaii's ruling, many states, including Hawaii itself, passed constitutional amendments and legislation banning marriage for all but opposite sex couples. And one of the most famous was Prop eight in California.

• 9:02Speaker 11

  Castro district. The streets of Castro and Market were full of people celebrating Barack Obama's win. Their party turned somber, though, when they realized that Proposition Eight was headed for victory. Supporters of gay marriage tell us they thought they reached the top.

• 9:16Nick Capodice?

  California legalized same-sex marriage in May of 2008, and thousands of couples got married. But the backlash was swift. And California put a proposition, an initiative that the people vote on, on the ballot that November, which banned marriage within same-sex couples. And financial support for Prop eight poured in from out of state, primarily from religious institutions like the Roman Catholic Church and the Knights of Columbus. And the vast majority of donations, as well as volunteers, came from the Mormon community. And Prop eight passed.

• 9:53Speaker 03

  Yeah, I remember that was heartbreaking. A lot of couples who had already gotten married, didn't they have to have their marriages annulled?

• 10:00Nick Capodice?

  No, they did not have to have their marriages annulled. Because as soon as the legislation passed, a trio of cases went to the California Supreme Court to argue that Prop eight was unconstitutional because it took away people's fundamental rights. And the court ruled that Prop eight was constitutional, but those 18,000 marriages remained legally valid.

• 10:23Speaker 03

  Interesting. Hmm, were there any gains for those fighting for marriage equality in the wake of all this?

• 10:30Nick Capodice?

  There were a few, notably in 2004, Massachusetts was the first state to license and recognize marriages between same-sex couples. Other states followed, including New York, which brings us to our next milestone, United States v. Windsor.

• 10:46Speaker 12

  I wanted to tell you what marriage meant to me. It's kind of crazy. We lived together for 40 years. We were engaged with the circle diamond pin because I wouldn't wear a ring because I was still in the closet. I am today an out lesbian, okay, who just sued the United States of America, which is kind of overwhelming for me.

• 11:09Speaker 07

  Edie Windsor and Thea Spire were married in New York State in 2008. Thea died in 2009 and left her entire estate to Edie Windsor. When a spouse dies, their surviving spouse gets to claim a tax exemption, where I believe you get an unlimited spousal deduction and you pay no federal estate tax on what your deceased spouse leaves you. She wanted to claim that exemption but was barred by Section 3 of DOMA, which, again, dealt with because marriage is between one man and one woman at the federal level, you don't get any benefits.

• 11:49Speaker 07

  So she had to pay, it was $363,053. By the time the case ended, it was over $638,000 in estate tax payments that the government had to pay back. But she sued the federal government because if you think about it, what is it, had Edie been Eddie, a man, you know, then she would have qualified for that unlimited spousal deduction.

• 12:15Nick Capodice?

  Melissa was in the courtroom when USV Windsor was argued and when the opinion was read, and the court ruled 5 to 4 that the Defense of Marriage Act imposes a, quote, "disadvantage, a separate status, and so a stigma to LGBTQ married couples," and thus violated the due process protections of the Fifth Amendment. And so DOMA is struck down.

• 12:39Speaker 13

  By seeking to displace this protection and treating those persons as living in marriage as less respected than others, Section 3 of DOMA is in violation of the Fifth Amendment.

• 12:49Speaker 09

  This opinion and it's

• 12:50Speaker 03

  I have an honest civics clarification here. You said due process in the Fifth Amendment. I thought due process was the Fourteenth Amendment.

• 12:58Nick Capodice?

  I had the same question.

• 12:59Speaker 07

  And I know listeners are gonna hear there's two due process clauses. What does that mean? Um, which I totally, I totally get. The Fifth Amendment binds the federal government. The Fourteenth Amendment binds the states.

• 13:12Speaker 03

  Okay, got it.

• 13:13Nick Capodice?

  So what we then have are 50 states, each with their own rules when it comes to marriage equality.

• 13:19Speaker 03

  Okay, so how do we get to the national decision on marriage equality?

• 13:23Nick Capodice?

  We get there from that favorite dance move of the Supreme Court. The Circuit Court split.

• 13:30Speaker 07

  And so a circuit split happens when one circuit rules one way and another circuit rules the opposite way. And now you have, based on where you're living in the country, in the same United States of America, the law is two different things. So what happened with Obergefell and those associated cases were there were positive rulings towards marriage equality, saying that state level bans were unconstitutional in the Fourth, the Seventh, the Ninth, and the Tenth Circuit. But if you lived in Ohio, Kentucky, Michigan, Tennessee, the bans were constitutional. And so that leaves a circuit split. The only people who can rectify a circuit split are the justices of the United States Supreme Court.

• 14:12Nick Capodice?

  So the court agrees to hear four cases, one from each state in the Sixth Circuit. And that is how we get to Jim Obergefell.

• 14:22Speaker 08

  So the first time I met John, honestly, he scared the daylights out of me. Because I was still a high school teacher. I was still closeted and I went out with a friend of mine and we went to a bar near the University of Cincinnati where we had both graduated. So, sitting at the bar was his friend John.

• 14:42Nick Capodice?

  It wasn't the first time they met that they got together, nor the second. But the third time they met each other, they decided to be a couple.

• 14:49Speaker 08

  And John and I joked that for us, it wasn't love at first sight, it was love at third sight. We, yeah, became a couple. John tried to talk me out of it, said, Jim, I'm a mess. I've dated a lot of men. It never ended well. But I wouldn't be dissuaded. I wouldn't be talked out of it. So we became a couple. You know, that Hawaii case, which did not turn out the way we wanted it to. So that was when all of those state-level DOMAs started happening and also, you know, the federal-level Defense of Marriage Act. So we just thought marriage is forever going to be something we're denied the ability to do. We just thought it was forever out of our reach.

• 15:30Nick Capodice?

  And tragically, in 2011, John was diagnosed with ALS, and Jim devoted his life to taking care of him.

• 15:38Speaker 08

  June 26, 2013, I was standing next to John's bed because at the time, he was in at-home hospice care, and I was this full-time caregiver. Well, other than like four hours a week when the hospice nurses visited. So when we heard that the Supreme Court struck down the Defense of Marriage Act, I did. I just leaned over, hugged him, and kissed him and said, "Let's get married." And luckily, he said yes. But you know, here we were, living in Ohio, which had its own state-level version of the Defense of Marriage Act, which meant I could not just put him in his wheelchair and take him six blocks to the county courthouse for a marriage license. So we had to figure out, well, where do we go? Where do I take this dying man to do something millions of people simply take for granted?

• 16:21Nick Capodice?

  Jim and John considered several cities in which they could get married, but they were all long drives away, severely uncomfortable for John in his wheelchair. But a friend of theirs suggested Maryland, because Maryland was the only state that allowed just one member of a couple to apply for the marriage license, which meant John only had to travel for the ceremony itself.

• 16:44Speaker 08

  We also knew who was going to officiate, because years before, John's Aunt Paulette had told us that, in her opinion, we represented marriage better than any other couple she knew. And she as well wanted us to be able to marry one day. So she was more optimistic than we were, I guess, because Aunt Paulette, Aunt Tootie's her nickname, Aunt Tootie went to the internet where she clicked the "Ordain Me" button. Because she wanted to be able to officiate if we ever had the opportunity. So after I proposed to John, I called Aunt Toody and said, Aunt Toody, do you remember the promise you made or the offer you made to officiate? Does that still stand? And of course Aunt Toody said, absolutely, Jim, you tell me when and where, I will be there.

• 17:26Nick Capodice?

  And because of John's condition, they booked a medical jet to get to Baltimore Airport.

• 17:31Speaker 08

  And we landed, parked on the tarmac,

• 17:35Speaker 08

  and got married. I got to take John's hand and we got to say, I thee wed, I do. And it really was the happiest moment of our lives.

• 17:48Nick Capodice?

  And shortly after their wedding, a lawyer friend of a friend of Jim and John's, Al Gerstein, asked to meet with them.

• 17:54Speaker 08

  So on Tuesday, five days after we got married, Al came to our home. And during that conversation, he pulled out that piece of paper that he had searched his files for, and it was a blank Ohio death certificate. And he said, now, my guess is you haven't really thought about this because why would you be thinking about John's death certificate when you just got married? But do you guys, do you really get it? Do you understand that because of Ohio's Defense of Marriage Act, when John dies, his last official record as a person will be wrong? Ohio will say he's unmarried, and Jim, they're not going to list your name as his surviving spouse.

• 18:28Nick Capodice?

  Jim went to court, and he sued eight days after their wedding.

• 18:33Speaker 03

  Who is he suing?

• 18:34Nick Capodice?

  Initially, he sued three parties: Governor John Kasich, Attorney General Mike DeWine, and the city of Cincinnati itself, as these are the three parties involved with death certificates.

• 18:45Speaker 03

  But they were married, right? And the state of Ohio refused to recognize that marriage?

• 18:50Nick Capodice?

  It did, and this was at the heart of their argument.

• 18:53Speaker 08

  Our legal argument was, in my opinion, so simple, so clear, so obvious, because in Ohio, first cousins cannot get a marriage license.

• 19:05Speaker 08

  In Ohio, an underage couple cannot get a marriage license. However, if they're in another state that that will issue marriage license to first cousins or underage couples, and they get married in that state, as soon as they cross the border into Ohio, Ohio immediately says, "Your marriage exists. You get all of the rights, all of the protections, all of the responsibilities of a married couple, even though your marriage is one that cannot be entered into in Ohio." So our legal argument was, "Ohio, you're you're creating separate classes of people by recognizing some out-of-state marriages, but not others."

• 19:40Nick Capodice?

  At the beginning of the hearing, the Cincinnati city solicitor stood up in the courtroom and said, "We don't want anything to do with this. John and Jim's marriage should be recognized."

• 19:53Speaker 03

  Wow.

• 19:54Speaker 08

  And at 5 o'clock that day, July 22nd, we won.

• 19:58Speaker 03

  They won?

• 19:59Nick Capodice?

  They did.

• 20:00Speaker 03

  But if they won in Ohio, how did their case get up to the Supreme Court?

• 20:03Nick Capodice?

  Well, when John died, and it came time to fill out that death certificate, the state had an opportunity to appeal, which it did. Haven't you out there ever Googled your own name, like, actually done it? You'll find your address, your phone number, maybe even that police report from the time you went to see Rain Man in the movie theater, but you were underage? Maybe that one's just me. But here's the thing, there are companies called data brokers, whose entire business model is collecting your personal information and selling it to advertisers, to strangers, sometimes to people running scams. And once your data's out there, it just keeps circulating. That is where Incogni comes in.

• 20:45Nick Capodice?

  Incogni contacts data brokers on your behalf and sends them removal requests over and over, so your info doesn't just pop right back up. You set it up once, and they keep working in the background. You can even track the progress on a dashboard. And for our listeners, we have an exclusive 60% off an annual Incogni plan. Just go to incogni.com/civics, or use the code CIVICS at checkout. There's a link in the episode description. Remember, they can't harm you if they can't find you.

• 21:18Speaker 00

  At Farmers, we go out of our way to keep you in the know.

• 21:21Speaker 01

  Like by singing, everything for emphasis.

• 21:24Speaker 00

  That, and by providing you with coverage on a page, an easy-to-understand language, so you know what's covered and what's not.

• 21:31Speaker 01

  No confusing legalese that no one gets.

• 21:34Speaker 00

  And full transparency, we do have to put a disclaimer at the end of this ad, though. Just being honest, that's what you get when...

• 21:40Speaker 01

  You have Farmers.

• 21:43Speaker 02

  Learn more at farmers.com. Underwritten by Farmers Truck or Fire Insurance Exchanges or Affiliates. Product not available in every state.

• 21:47Nick Capodice?

  And so we get to the Supreme Court. Four cases, combined into one, each with unique circumstances. And since Jim and John's case had the lowest docket number, the Supreme Court case is heretofore referred to as Obergefell v. Hodges.

• 22:02Speaker 03

  Who is Hodges?

• 22:03Nick Capodice?

  Yeah, this is interesting. Jim told me that neither Governor Kasich or Attorney Dewine wanted their name attached to the case. So the only respondent was the Director of the Ohio Department of Health, Rick Hodges. And as a quick side story, sometime after the decision, a friend of Jim's asked if he wanted to meet Rick Hodges. And Jim was like...

• 22:23Speaker 08

  I don't know, Elena, do I? Because, you know, in my mind, even though I'd always thought he's just a name, he's just a fall guy, I had no idea. I had no, no knowledge of this man, no clue what he really thought. So we met. And we are now close friends.

• 22:43Nick Capodice?

  Rick Hodges wasn't even remotely involved with the case and supported rights for LGBTQ plus couples.

• 22:49Speaker 03

  Getting back to the case, what were the arguments in court?

• 22:52Nick Capodice?

  All right, here's Melissa again.

• 22:54Speaker 07

  When the cases were consolidated, the court determined what the legal questions were going to be. They had two. The first question was, does the 14th Amendment require a state to license a marriage between two people of the same sex? The second question, and only... The Obergefell case, the other three cases dealt with the licensure of marriage. Obergefell's case was a little different because it was asking the state to recognize a marriage that was not performed in that state. So the second legal question is, does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?

• 23:37Speaker 03

  It seems that whenever we're exploring civil rights cases in the Supreme Court, the Fourteenth Amendment, dealing with equal protection and due process for states, gets brought up.

• 23:46Nick Capodice?

  Yeah, and this time, there's another constitutional issue. And this is exclusively related to Jim and John's case. It's Article Four of the Constitution. That's something called the Full Faith and Credit Clause.

• 23:57Speaker 14

  The Fourteenth Amendment does not require states with traditional marriage laws to recognize marriages from other states between two persons of the same sex.

• 24:06Speaker 15

  What about Article Four? I'm so glad to be able to quote a portion of the Constitution that actually seems to be relevant. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. Now, why doesn't that apply?

• 24:27Nick Capodice?

  I asked Jim, who was in court during the arguments, what he remembered. And he said that two arguments stood out.

• 24:34Speaker 08

  One of the justices brought up the fact that in ancient Greece, based on what we know about Greek civilization, same-sex relations were okay. But there's no evidence that same-sex marriage was allowed. Well, why not? Why do you think that is? And Mary Bonato, who did the arguments for the right to marry, she said, "Your Honor, I'm in no place to even guess what ancient Greek philosophers thought or believed." It was just such a ridiculous argument. Who cares what happened in ancient Greece? But then the other one, which I love, again, I forget which justice this was,

• 25:14Speaker 08

  brought up that tired argument that, you know, those of us who were proponents of marriage equality, we were changing the definition of marriage because marriage had meant the same thing for millennia. And Ruth Bader Ginsburg jumped right in and said, "No, I'm sorry. We already have changed the definition of marriage because women are no longer the property of their husbands."

• 25:39Nick Capodice?

  Also Jim remembers this happening.

• 25:44Speaker 08

  There was somebody in the public seats who started screaming that we were all going to hell, or things like that, at the start. And you could hear him as they're dragging him down the hallway, even though the courtroom doors were closed. He had quite the volume.

• 26:00Speaker 15

  Actually, Mr. Chief Justice, if the court is ready. We're ready. Okay. It was rather refreshing, actually.

• 26:13Speaker 03

  Okay, so that's the anti-marriage equality, folks. What is the arguments for it?

• 26:19Nick Capodice?

  I think the argument was best summarized in the opening line of the argument from Jim and John's advocate, Mary Bonato.

• 26:26Speaker 16

  Mr. Chief Justice, and may it please the court, the intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society.

• 26:39Nick Capodice?

  The arguments in court were at the end of April 2015, and as the court reads decisions on Mondays in May and June, Jim started going to DC every single week.

• 26:48Speaker 08

  I knew I had to be in the courtroom to hear the decision. I couldn't imagine not being there to hear what the highest court in the land said. And you know, I also have to be honest, Nick, from the very start. Like, we're, we're winning this. We're on the right side.

• 27:04Nick Capodice?

  And as is often the case, the Supreme Court has a lot of decisions to read, so they were adding additional days.

• 27:10Speaker 08

  But then we were outside the courtroom on the 22nd, when someone came running out to say, well, they just added Thursday, June 25th as a decision day. A few minutes later, someone else came running out and said, well, they just added Friday, June 26th as decision day. And I was there, Al was there, other attorneys on the case, plaintiffs, and we all looked at each other and said, it's gonna be Friday, June 26th.

• 27:36Speaker 08

  And the reason we thought that was, that's an important date for LGBTQ rights at the Supreme Court. United States versus Windsor, which struck down DOMA, came out on June 26, 2013. Lawrence versus Texas, which struck down anti-sodommy laws, came out on June 26.

• 27:52Nick Capodice?

  The decision was 5-4 in favor of Obergefell. Justice Anthony Kennedy delivered the opinion. The decision states that both the due process clause and the equal protection clause of the 14th Amendment guarantee the right of same-sex couples to marry.

• 28:09Speaker 13

  In forming a marital union, two people become something greater than they once were and would misunderstand petitioners to say that they disrespect or diminish the idea of marriage in these cases. Their plea is that they do respect it, but they respect it so deeply they seek to find its fulfillment for themselves. They ask for equal dignity in the eyes of the law, and the Constitution grants them that right. For these reasons and others, set out in the opinion.

• 28:34Speaker 08

  And I burst into tears. You could hear people around the courtroom sobbing. Al told me later, because he was in the courtroom as well, he told me later that he has never seen so many attorneys crying in a courtroom. And, you know, of course, not surprisingly, my first thought was, John, I wish you were here. I wish you could experience this. I wish you knew that our marriage can never be erased. I wish you could know that I will always have the legal right to call you, to call myself your widower, to call you my husband. And I missed him desperately.

• 29:14Speaker 08

  But then I also had this amazing realization that, for the first time in my life as an out gay man, I felt more like an equal American than I ever had before.

• 29:30Nick Capodice?

  And there were four separate dissents, one for each dissenting justice. And it's something rather rare. Each Supreme Court Justice usually only does this like once a year. For the first time in his tenure on the court, Chief Justice Roberts read his dissent from the bench. Jim walked out of the courtroom. It was bedlam, celebration everywhere. He was being interviewed by CNN.

• 29:54Speaker 08

  And I finished that interview and I turned around. I'm looking at the courthouse. And someone hands me my phone and says, Jim, you have a phone call.

• 30:00Speaker 17

  Hi, is this Jim?

• 30:02Speaker 08

  Yes, it is, Mr. President.

• 30:04Speaker 17

  Jim, I figured when I saw you that we were going to be hoping for some good news. And we did. I just wanted to say congratulations.

• 30:12Speaker 08

  Thank you so much, sir. I think it was your wishes. Here I am in the midst of this joyful crowd, having a conversation on speaker with President Obama.

• 30:25Speaker 03

  Yeah, I remember seeing on the news tons of people getting married immediately. My friends were so excited. Some of them were crying. A lot of them made wedding plans that day.

• 30:35Nick Capodice?

  Yeah, and I just got some data on this. In 2019, the Census Bureau released an estimation that there are right now nearly 1 million Americans in same-sex marriages. And that's one of the reasons, Jim says, that regardless of the structure and ideology of the Supreme Court, this decision will last forever. It's hard for the Supreme Court to take rights away from people that it has previously granted. But he also says that the work's not done.

• 31:04Speaker 08

  I like to say, yes, we have the right to get married in all 50 states, but we don't enjoy marriage equality. We're far from enjoying marriage equality. I mean, we still have businesses, photographers, bakers, event venues, who don't want to, even though their business open to the public, if you happen to be a same-sex couple, they want the right to say that their religious beliefs... Are more important than someone else's civil and human rights. And there are still court officials and judges who have stopped doing all marriages because they don't want to officiate marriages for two people of the same sex.

• 31:44Speaker 03

  Nick, it's a tremendous victory, but I just want to point out that this story doesn't have a happy ending. Just like how DOMA passed after the Hawaii case, there was a national backlash in the wake of the Obergefell decision, and this is specifically anti-transgender legislation.

• 32:02Nick Capodice?

  Jim told me about the recent Supreme Court case, Bostock v. Clayton County, which ruled that an employer who fires someone for being gay or transgender violates the Civil Rights Act of 1964. But that decision was six to three, and it doesn't apply to everyone.

• 32:16Speaker 08

  But that doesn't apply to every job. That doesn't apply to everyone. So we still aren't equal in our jobs. So if you, if you're married, you have a family, and you lose your job because someone doesn't like you solely because you're LGBTQ+, well, that certainly isn't marriage equality.

• 32:32Nick Capodice?

  In 2021, there have been, so far, over 100 bills introduced to restrict trans rights.

• 32:39Speaker 03

  Yeah, I've actually been fired for being queer, and it was devastating. There was nothing I could do about it. And this is something we see in every civil rights case. You can change legislation, but you can't change people's attitudes.

• 33:03Nick Capodice?

  And that's it, I guess. Not just for this case, but for our civil rights in the Supreme Court series. We hope you enjoyed it. And we hope you follow us on Apple Podcasts or Spotify or wherever you get your podcasts to keep finding out about how our government works. And make sure to visit our website, civics101podcast.org, where you can get transcripts, teacher-created lesson plans, activities, and so much more. We've thanked her before during this series, but I'm going to do it again. These Supreme Court episodes would not have been possible without the tireless help of Rebecca Fanning from the US Courts. She got such a tremendous number of judges to talk to us about these cases, it made our jobs so much easier. And you can check out any of their great judicial resources

• 33:48Nick Capodice?

  at uscourts.gov.

• 33:51Nick Capodice?

  This episode was produced by me, Nick Capodice, with help from Jackie Fulton, Hannah McCarthy, Mitch Skaki, and Christina Phillips. Erica Janik is our executive producer. Special thanks to Person A, Fendel Fulton. Music in this episode from Blue Dot Sessions, Cycle Hiccups, Randy Butterknob, Scott Gradden, Ikki Machuoy, and the wondrous Chris Sabriski.

• 34:12Speaker 05

  Also, I'd like to extend a special thanks to Jim Obergefell for his and John's tireless efforts and all the others that put everything on the line to make it possible so we can be married. Ah.

• 34:28Nick Capodice?

  All right.

• 34:33Speaker 18

  This is Phil Bradison, former Democratic governor of the state of Tennessee. If you love digging into how history shapes US policy, check out the new season of You Might Be Right.

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