Kaitlin Meme and Maura McNamee attend a fitting at Savile Lane Fairlawn. <span class='image-credits'>Bob Perkoski</span>

Civics Essential: How the 14th Amendment — and love — won gay couples the right to marry in America

Before Cleveland residents Maura McNamee, 25, and Kaitlin Meme, 26, began dating four years ago, neither had had the nerve to reveal to their Catholic parents that they were gay.


But it was the couple’s growing love and commitment to each other that brought them out of the closet and now, with the Supreme Court’s 2015 ruling allowing same-sex marriage across the country, plans for a wedding this May.


“My parents overall have been very happy and excited for me,” McNamee says. “But I think it’s taking them time” to get comfortable with the idea of her marriage.


McNamee and Meme are a good example of how far gay couples have come and how far they still have to go towards acceptance in America since the groundbreaking Supreme Court decision in Obergefell v. Hodges — a case that has its roots in Ohio.


Since the ruling, the number of same-sex marriages in the U.S. has jumped by more than 50 percent — from 390,000 in June of 2015 to 591,000 in December of 2017, according to estimates by the UCLA School of Law. The decision overturned laws banning gay marriage nationwide.


“I think there’s still work to be done,” McNamee says. “We aren’t to the point yet where people don’t think about (same-sex marriage) as being any different” from opposite-sex marriage.


Nor does the court ruling have any impact on private employment or housing for gays. Either partner in a same-sex couple could be married today and fired from their job tomorrow if their private employer objected.


Even so, Obergefell v. Hodges marked a major victory for gay couples who, for decades, were denied Social Security, insurance benefits, inheritances, tax breaks, parental status, and other rights accorded to married opposite-sex couples, including alimony and child support in cases of divorce.


Consider what happened to M.B. Hopkins of Dayton. In 1996, Hopkins agreed with her long-time partner that each of them would have a baby and raise them together. Hopkins went first, giving birth to her son Eli, now 25. But when Eli turned one, Hopkins’ partner left her for another woman. With the house in her name, she ordered Hopkins and Eli to leave.


“I had absolutely no recourse,” Hopkins says, explaining she had no legal status as a spouse. She rented a room for herself and her son and did the best she could as a working single mother without child support. “If we had been married, things would have been far more equitable.”


Cincinnati residents Ryan Messer and his husband Jim Musuraca were married in New York a year before the Supreme Court ruling. But with their fourth child on the way, they’re relieved that the decision has given them legal status as parents in Ohio.


“God forbid, if something were to happen to me and Jim, things like (insurance) benefits are now protected,” Messer says.


Even a retired attorney like Denny Valot of Columbus needed time to realize the full import of the Supreme Court decision. Valot and his partner of 16 years “had both planned on being together for the rest of our lives anyway,” Valot says. Getting married “was just a piece of paper, I thought at first.”


But then Valot began to think about what would happen if he were hospitalized and his partner was denied visits or a say in his care because he wasn’t a family member. Or, if Valot were to die, the possibility that his partner’s inheritance might be contested. The couple was married in July 2016 with the reception at a Columbus bowling alley and recreation center.


The right to be named as the husband on his spouse’s death certificate is what spurred Cincinnati resident Jim Obergefell to take his case all the way to the Supreme Court. The result in June 2015 was the landmark decision known as Obergefell v. Hodges. The defendant, Richard Hodges, was then director of Ohio’s Department of Health, which issues death and birth certificates.


Two years before the ruling, Obergefell and his partner of 20 years, John Arthur, had no time to wait for Ohio to end its ban against gay marriage. Arthur was bed-ridden and nearing the end of his battle against ALS. Their solution was to raise money to fly a private medical jet to Maryland, where gay marriage was legal, for an inboard wedding on the tarmac at the Baltimore airport. Arthur died just three months later.


That might have been the sweet but tragic ending of the couple’s story if Alphonse Gerhardstein, a Cincinnati civil rights attorney, hadn’t heard from a mutual friend at a party about the couple’s quest to overcome Ohio’s gay marriage ban. Ohio’s voters approved the constitutional amendment in 2004.

Cincinnati civil rights attorney Alphonse Gerhardstein
Gerhardstein thought there was a chance to drive a wedge into Ohio’s law based on a recent decision in U.S. v. Windsor. Edith Windsor was the widow of Thea Clara Spyer, who died in 2009. The couple had been married in Canada in 2007, and their marriage was recognized by New York state law.


Spyer left her estate to Windsor. But because their marriage was not recognized under the U.S. Defense of Marriage Act (DOMA), the IRS imposed $363,000 in estate taxes. Had federal law recognized their marriage, Windsor would have been exempted from any tax. A New York federal court declared DOMA unconstitutional, and a federal appeals court affirmed the decision, arguing that DOMA violated the “due process” and “equal protection” clauses of the 14th amendment. The ruling gave same-sex couples the same rights as opposite-sex couples under hundreds of federal regulations but not those relating to the states.


Gerhardstein knew a similar “equal protection” argument could be made for his clients in Ohio. While Ohio didn’t recognize marriage between first cousins or with underage girls, it did recognize those marriages if performed in other states where they were legal. Why, in fairness then, didn’t Ohio recognize gay marriages performed in other states?


Gerhardstein talked with Obergefell and Arthur days after their marriage. He brought with him a blank copy of an Ohio death certificate. “I told them, ‘I’m sure you’re very excited about being married … but there’s a lot you haven’t achieved by simply being married in Maryland. For one thing, Ohio is not going to recognize your marriage.’”


He then showed them the death certificate. “I said, ‘When John dies, that box that says, ‘surviving spouse’ will be blank instead of having Jim’s name there.’ They thought that was just terrible.” He went on to tell the couple, “I totally get it if you don’t want to be the poster child for this in Ohio. It’s a hostile situation and John’s in a hospital bed.”


But the couple decided they wanted to go forward with their case.


In July of 2013, Gerhardstein filed for a temporary restraining order in federal court in Cincinnati against the state’s marriage ban on behalf of Obergefell and Arthur. The state sent down a team of lawyers from Columbus to defend the law. But U.S. District Court Judge Tim Black not only approved the temporary restraining order, but also granted a preliminary injunction that gave Gerhardstein and his firm time to prepare their suit for trial.


Gerhardstein added more gay couples to the suit and a funeral director who wanted the right to list same-sex spouses on death certificates. He also filed a companion case for three pregnant women and their same-sex spouses who wanted their names on Ohio birth certificates. They won an injunction as well.


The state appealed Black’s ruling to the U.S. District Court of Appeals, where a judge on the three-member panel argued that gay marriage was a political issue to be decided by voters, not a legal issue to be decided by the courts. Gerhardstein countered that the three babies of the same-sex couples present in the court “would have to raise $10 million and run a (ballot) initiative campaign to get the (Ohio) constitution amended. That’s unrealistic. They have a fundamental right to two moms.” But the judges ruled 2-1 in favor of Ohio’s ban on gay marriage.


There was one last place to appeal the case — the U.S. Supreme Court. At the request of the court, Obergefell’s suit was combined with similar appeals cases from Michigan, Kentucky, and Tennessee. The resulting collaborative effort would involve a team of 10 lawyers from five different law firms. Numerous civil rights organizations provided their support for the effort as well, including the ACLU, Michigan’s GLBTG Advocates and Defenders (GLAD, and California’s National Center for Lesbian Rights (NCLR).


The judges ruled 5-4 in favor of the plaintiffs, and gay marriage became the law of the land.


“It’s the 14th amendment that allowed us to win this case,” Gerhardstein says. The amendment’s “due process” and “equal protection” clauses embody “concepts that go to the core of what it means to be a citizen in our form of government. No state or locality should be able to deny anyone due process and equal rights under the law.”

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Support for Ohio Civics Essential is provided by a strategic grant from the Ohio State Bar Foundation to improve civics knowledge of Ohio adults.
 
The views expressed herein do not necessarily represent those of the Ohio State Bar Foundation.

Read more articles by Jim DeBrosse.

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