I began teaching constitutional law this semester to first semester law students with the case of Obergefell v. Hodges, the U.S. Supreme Court’s same-sex marriage case. It is a case that was riveting for my students as well as for me, as it brings into play all of the grand themes as well as the challenges of constitutional law as a vehicle for social change. I had been involved in multiple briefs on the same sex marriage cases with other family law professors and legal historians, and the UF Center on Children and Families also has been active in advocating for gay and lesbian families.  Little did I know that during this semester the lead named plaintiff in this case, Jim Obergefell, would be invited to the University of Florida by Accent to share his experience in this landmark chase. A significant number of my students came with me to this event and their presence as well as his words left me with some lasting impressions about the wisdom of this particular plaintiff, one of many who stood up to be counted in this case. So here are my lessons learned from Jim Obergefell.

 

  1. It is always important to remember the human side of every case.  Jim told the story of his life, from his coming out in his mid twenties, to meeting the love of his life, John Arthur and their 21 years together in a loving relationship—as one of my students said in his question to Jim that evening, “Yours is a true love story.”  They lived in Ohio which did not recognize same sex marriage, so theirs was a relationship not formalized by marriage until the Supreme Court in 2012 decided S. v Windsor, striking down a portion of the federal Defense of Marriage Act and leading to same sex marriages performed in one state to be recognized in another.  Jim’s response to Windsor was to ask John to marry him—what he humorously called “not the most romantic proposal.”  The challenge to their marrying was his partner’s battle with ALS, which by that time had progressed to a point where a medical jet was necessary to fly them to Maryland, the closest jurisdiction where they could file the necessary paperwork and get married.  A chance Facebook posting quickly brought an avalanche of friends sending  money to make the special medical jet possible.  The picture of their marriage, performed by his Aunt Tootie, is a testament to love.  It is a further testament to love, however, that this lawsuit began before his partner’s death, when they discovered that Jim would not be listed on the death certificate as John’s surviving spouse when John died, because the state of Ohio would not recognize their marriage.  A conversation with a kind and compassionate lawyer who heard about this and offered to support them in bringing a challenge to Ohio’s law was the beginning of the case—a beginning that came from their partnership, brought by both him and John.   Jim’s clarity and love generated powerful advocacy, a reminder of the power of messages from the heart.
  2. Courage and strength are required to pursue such a case. One of the memorable pieces of his talk was hearing his wait for the final decision by the Supreme Court as the Court’s term was winding down.  He flew to Washington and during the last week of the term, stood in line every day, got a seat, and waited to see if this was the day the outcome would be announced.  He was there, then, on June 26—the anniversary of Windsor and of his proposal to his partner—when the case was announced.  He listened to the majority decision from Justice Kennedy, and in testimony to the way that legalese can sometimes be confusing, had to ask those around him, “Is it true?  Did we really win?”  But this was a very close case, a 5-4 decision, with strong, even bitter and caustic dissents.  So he also heard Chief Justice Roberts read part of his dissent.   How hard that must have been, just as how difficult it must be for him to continue to hear the pushback on this decision, on a human level.  Nevertheless it was wonderful to hear that he has not experienced any personal threats or violence; to the contrary, he relayed countless incidents of people expressing their gratitude to him.
  3. Bringing a case can be transformative—Jim called himself an “accidental activist.” This attests to the power of one—or as he said, two, as he continues to bring his partner John into his journey.
  4. Finally, there is more to be done—Jim is using his recognition to shine light on issues yet to be addressed. Two he mentioned were the Equity Act in Congress, to add sexual orientation discrimination to the list of discrimination prohibited under federal civil rights statutes, and transgender issues, particularly in light of the litany of murders of transgendered individuals in 2015.

 

It was truly a memorable night, a reminder of the best we can be as individuals and lawyers, authentically telling a story like this one, an inspiration I hope for my students for years to come, just as Jim was an inspiration to me.

 

Nancy Dowd

Nancy Dowd’s research focuses on social justice issues connected to family law, juvenile law, constitutional law, race and gender analysis, and social change theories. She is currently engaged in research about a developmental model of equality, using the life course of African American boys from birth to age 18. Her recent books are Justice for Kids (NYU Press 2011), which identifies better solutions for kids than the current juvenile justice system, and A New Juvenile Justice System (NYU Press 2015), which articulates the vision of a new youth justice system focused on child well being and public safety. Her other recent book is The Man Question: Male Privilege and Subordination (2010), on masculinities theories as a means to expand gender analysis and also incorporate other hierarchies that affect gender, particularly race and class.

Dowd served as the Director of the Center on Children and Families until 2015, and in that role focused on issues of juvenile justice, social justice, non-traditional families, gay and lesbian rights, and collaboration with the Center for the Study of Race and Race Relations on issues of race and families. CCF also established the Intimate Partner Violence Assistance Clinic led by Professor Teresa Drake, a groundbreaking collaboration between law and medicine. She teaches family law and constitutional law.

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