Amend: The Fight for America (2021) s01e05 Episode Script
Love
1
[atmospheric music]
[Jones] In my life,
when it comes to the 14th Amendment,
there's probably no more central moment
than the case of Loving versus Virginia.
Hi, I'm Martha Jones,
Professor of History
at Johns Hopkins University.
In 1967, in 18 states
the marriages between white and people
said to be not white weren't recognized.
Loving versus Virginia
is that moment when the US Supreme Court
finally strikes down what we term
anti-miscegenation laws.
But…
um, my parents were married in 1957,
ten years earlier.
My mother, a white American woman,
my father, an African American man.
They couldn't be married
in his home state.
They were married in New York.
They were reviled and ridiculed.
We, their children, were branded… [sighs]
… "unfortunates," and worse.
I am a child of Loving versus Virginia,
which is to say…
that as I try and make s…
[voice breaks] sense of my own life…
[tuts] Shoot.
You told me this was gonna happen.
[quietly] One sec.
Um, Loving we owe to the 14th Amendment.
It's the Equal Protection Clause
that is going to expressly be the vehicle
for talking about
inequality before the law.
The case lends my family a kind of…
legitimacy.
So, when I think about my own story,
I think about the folks
who waged those tireless
and oftentimes thankless campaigns
to breathe into the Constitution
some kind of meaning that helps
to make my life make sense.
That's my story.
["Have Some Love"
by Childish Gambino playing]
Have a word for your brother ♪
Have some time for one another… ♪
[narrator] We are gathered here today
to celebrate the marriage
of the 14th Amendment…
and marriage.
Now, marriage is a symbol of your love,
your commitment,
and it's a legal bond.
The government believes that marriage
is so essential to our society
that it gives married couples
benefits and legal protections
that keep families whole.
Now, you might not know it,
but marriage and the 14th
have a long history together.
Before the Civil War,
enslaved people
had no legal right to marry.
Without that legal recognition,
they could be ripped apart
from their spouses
and children at any time.
Only after emancipation
and with the protections of 14
could formerly enslaved people
finally legally marry.
["Unchained Melody"
by Andy Williams playing]
Oh, my love ♪
My darling, I've hungered… ♪
So, when same-sex marriage
comes before the Court in 2015,
it's not just about love.
It's about being seen
and accepted by the government
as full and equal citizens.
[man] The present laws give the choice
of being heterosexual and legal
or homosexual and illegal.
[man 2] Do you remember how you felt when
you first realized you were a homosexual?
Frightened.
I didn't want to be different.
I didn't want to stand out.
I wanted to have everything
that everybody else had.
…your love ♪
Nothing more and nothing less.
…to me ♪
[bright music playing]
I would say the first time I started
to know that I was different
was probably when I was eight
or nine years old.
I remember after the family was finished
with the Sears or JCPenney catalogs,
and they were thrown out,
I would fish those catalogs
out of the trash.
And I did that because I wanted
to cut out the pages of men's underwear.
Now, I couldn't tell you why,
I just knew I wanted those pages.
They, they meant something to me.
But I also realized that I felt…
a sense of shame, like somehow
I knew it was wrong to do that.
And that sense of shame
finally got the better of me
and I actually burned those pictures
in a coffee can in the basement.
Starting in middle school,
I sang in the choir, I did musicals,
stereotypical gay things.
I didn't play sports.
Just one of those kids
who checked a lot of those boxes
of, "Oh, he must be gay."
As I started to get older,
the closet door creaked open a little bit,
but I quickly slammed it shut
because at that point I was still
coming to terms with being gay.
[woman] "The discovery of one's sexual
preference doesn't have to be a trauma."
"It's a trauma
because it's such a traumatized society."
[man] One never knows
when the homosexual is about.
He may appear normal,
and it may be too late
when you discover he is mentally ill.
A sickness that was not visible
like smallpox,
but no less dangerous and contagious,
a sickness of the mind.
[Baldwin] If a man's sexuality is gone,
then his possibility,
his hope of loving is also gone.
[as Baldwin]
"The so-called straight person
is no safer than I am, really."
"Loving anybody,
being loved by anybody,
is a tremendous danger,
a tremendous responsibility."
[Baldwin] It's a journey
which both people have got to make
with each other.
[Obergefell] The first time I met John
was a couple months before I came out
and he was so comfortable in his skin
as an out gay man
that it scared me.
But I was still closeted,
so that was one of those moments
when you meet a friend's friend.
We chatted for a bit and that was it.
At that point, I just wasn't ready
to admit to anyone else that I was gay.
The second time John and I met,
we started talking
and at some point John said,
"Well, Jim, you'd never go out
with someone like me."
And I still don't know
where I had the wit or the courage
to respond the way that I did,
but I said, "Well, how do you know?
You've never asked."
But he didn't,
so that was meeting number two.
The third time, I was back
in Cincinnati for the holidays
and John was
having a New Year's Eve party.
So, I went to the party at John's house
and we met for the third time
and I never left.
John and I would always joke
that for us it wasn't love at first sight,
it was love at third sight. [chuckles]
And I met Jim and I really liked Jim,
but the thing that made me
love him the most
was, in John's entire life,
I had never seen him that happy.
[Obergefell] It really was just
a happy life of living in Cincinnati
and just being a couple
and making friends.
Pretty darn boring!
But at that point,
Cincinnati was not a great place to be
for the LGBTQ community,
for any community that was different.
[narrator] When it comes to LGBTQ rights,
Cincinnati in the '80s and '90s is,
a lot like Cincinnati in the '50s,
or any other big city
in the United States at that time.
The message to its LGBTQ citizens is,
be quiet,
stay hidden or get out.
- America, you're at your best! ♪
- America, you're at your best! ♪
America, you're at your best
in Cincinnati! ♪
I've been telling law students
who want to be civil rights lawyers
for 40 years,
"If you really want the work,
go to the Midwest."
When we moved to Cincinnati,
it still had Klan rallies,
burning a cross on Fountain Square.
[reporter] A Cincinnati art gallery
and its director went on trial
in Cincinnati for obscenity.
[Gerhardstein] The Mapplethorpe exhibit
was an example
of just where Cincinnati was at the time.
It was just too much for the city.
We were in a very, very dark period.
And I felt,
as a budding civil rights lawyer,
I had a huge amount of work to do.
I started representing low-income people
with respect to public benefits.
We did an employment project
to try and help people get jobs.
I wanted to make sure
that the American Dream
was available to everyone.
After a few years,
I began to meet person after person
who was fired
simply because they were gay.
I brought one case after another,
trying to figure out ways
to get them equal protection
under the existing law.
I lost every one of those cases.
So, we decided to start
knocking on the door
of the Cincinnati City Council.
We brought all these clients in
and they explained
what it felt like to be fired
for a status you had no power over,
and we were able to convince the council
to pass a human rights ordinance.
This was huge.
You can't fire somebody
simply because they're gay.
It was a great day
and there was a lot of celebration.
But…
right there on the wings
of our celebration
was the dark cloud
of Citizens for Community Values.
The 1964 Civil Rights Act
identified persons based on, you know,
something you could see,
something you could identify,
not behavior.
And for someone to come along
and claim minority status
based on behavior,
think what that would do.
That just opens Pandora's Box.
[Gerhardstein] These forces
that were aligned against us
proposed a charter amendment
called Article 12.
[reporter]The actual wording
of the proposed amendment is as follows.
"The City of Cincinnati
may not enact any ordinance,
regulation, rule or policy
which provides that homosexual orientation
provides a person with a basis
to have any claim
of preferential treatment."
[Gerhardstein] Article 12
was passed by 64% of the vote
and that repealed
the Cincinnati Human Rights Ordinance
and it barred the city from offering
any protection of any kind
for what they called
homosexuals, bisexuals,
uh, or lesbians forever.
[Obergefell] We officially became
the most gay-unfriendly city
in the nation.
It was really devastating
to have this pass
and to know that our fellow citizens
thought that we did not
deserve protections of any sort.
They're up in arms because they're
not getting certain privileges and rights.
There's something wrong. They're abnormal,
and I don't think it's normal.
[Obergefell] There was just
a lot of anger and discrimination
towards the LGBTQ community.
It makes you sick and stuff saying,
"He's gay," "She's a lesbian," and stuff.
You know?
It should be kept in your own home.
Definitely.
[Obergefell] In this environment,
LGBTQ people were expected to be quiet
and not raise a ruckus, and just fit in.
If you look a certain way,
if you act a certain way,
you're okay.
We were okay because we didn't
wave our own personal Pride flag.
We fit into what the people in Cincinnati
expected from two Caucasian young men.
It was a frightful time
to be gay in that city.
[Gerhardstein]
We were the only city in America
with a formal statement
of hatred against gays.
How can this be legal in America?
When we founded our government
a second time,
and that's what the 14th Amendment is,
we said that all persons
are entitled to equal protection
under the law.
So, we sued to challenge
the constitutionality of Article 12.
[news jingle]
Good evening. The gay rights battle
in Cincinnati didn't end on election day.
[reporter] Legal experts think
that this type of legislation
may not stand up
to the Constitutional test.
But there's a huge challenge in this case
that we haven't talked about yet.
And that is that in 1986,
the US Supreme Court
had decided Bowers versus Hardwick.
[man] Mister Chief Justice,
and may it please the Court,
this case presents the question
of whether or not
there is a fundamental right
to engage in consensual homosexual sodomy.
[narrator] Are we really debating
consensual sexual activity here?
I'm just saying,
if somebody tried to tell you
that what you and your partner
do in your bedroom is illegal,
I mean, I bet you'd feel
some kind of way about that.
[jaunty music]
[sighs]
[inhales]
[exhales and clears throat]
You know the moment in a romantic comedy
when everything goes wrong?
Girl spills latte all over guy,
or guy confesses his love to girl
seconds before her wedding.
For Michael Hardwick,
his rom-com goes really wrong
when a police officer
walks in on private time
between him and his boyfriend.
And in 1982 in Georgia,
some private acts are punishable
by up to 20 years of jail time.
But although the charges were dropped,
for Michael his fight
was just getting started.
He sued the state of Georgia
and eventually his case
made it to the Supreme Court.
Hardwick's lawyers argue
that the 14th Amendment
protects a person's right to privacy,
which definitely
includes a person's bedroom.
[woman] How do we get here?
Go back to the 14th Amendment,
Section One.
The argument was
that a law that made it a crime
to engage in sex,
deprived the individual of liberty
without due process of law.
It's about how you have this right
to be able to make the choice
about who you want to love.
Maybe it's not written down,
but it's so important
that we're just gonna assume
that it's in the Constitution.
The Court, on a close 5-4 decision,
ruled that homosexual claims
of a right to participate in sodomy
were not protected by the Constitution.
[reporter] Justice White wondered
if the Court would be asked
to give the okay to adultery and incest.
The Supreme Court comes down
and says that under the 14th Amendment,
these are not rights
protected by the Constitution.
I got shot up in Vietnam and I come back
and they tell me the Constitution
doesn't belong to me.
Well, I say bull [bleep]
[Rahman] A lot of people likened it to
Plessy or Dred Scott,
a Supreme Court decision
that puts them back
in a second-class citizenship position.
Equal justice under the law!
We're not getting equal rights!
[man] The Court basically said
there's no protection for gay people.
They can be put in jail…
for gay sexual conduct.
This was one of the most
disgraceful decisions in the 20th century.
[reporter] One of those arrested
was Michael Hardwick of Atlanta.
[Gerhardstein]
Bowers was a huge roadblock for progress.
It gave our government license
to discriminate against gay people.
And so every time you raise the notion
of equal rights for gay people,
I'd have Bowers thrown in my face.
And, lo and behold, that's what happened
in the Sixth Circuit Court of Appeals.
[woman] "Mr. Gerhardstein,
since Bowers, every Circuit Court
which has addressed the issue
decreed that homosexuals are entitled
to no special Constitutional protection
as a special class,
because it's pretty hard to identify
in any individual homosexuality,
is it not?"
"How are we even gonna
identify who they are?"
I remember that exchange,
and I remember the difficulty
Judge Kennedy had with this point
as if… she wanted to know…
who they were.
"Many homosexuals
successfully conceal their orientation,
and because homosexuals
are not identifiable on sight,
unless they choose to be identifiable
by their conduct,
they just can't
constitute a special class."
I actually have relived
this part of the argument
and I want I want a do over,
'cause I wanna turn to…
[solemnly] I wanna turn to the crowd.
The court room was packed.
[voice breaks] And I wanna ask
all the gays to stand up.
[inaudible]
[inhales, then sighs]
They were all around her.
Then I thought, "That's not fair."
I mean, we're still living under Bowers.
Maybe just being identified
is going to put them at risk.
We had won zero protection
for these people.
When you lose a case of this consequence,
when you leave a city this defenseless,
when you leave people this lonely…
[voice breaks] …it's hard
not to take it personally.
- [gavel bangs]
- [background chatter]
[man] Invisibility.
Marginalized groups feel it all too often.
Black people's skin has traditionally
made us so invisible to society
that we have had to literally
paint our existence onto the streets.
Unlike the Black community,
the LGBTQ community's invisibility
comes from being forced to hide.
They've had to live in the closet
or face persecution,
being arrested, fired,
ostracized from their family or worse.
And because they've had to hide,
society tells us they simply don't exist.
Art by LGBTQ people
is suppressed or coded,
their identities are erased from history.
As LGBTQ poet and essayist
Adrienne Rich says,
"When someone describes the world
and you're not in it,
there's a moment
of psychic disequilibrium,
as if you looked in a mirror
and saw nothing."
[exhales sharply]
Can you imagine that?
Well, the sad thing is,
too many people can.
[traffic whooshes]
[people chatter]
[horns beep]
[Obergefell] You know, amazingly enough,
Cincinnati really started to change
in the early 2000s.
Attitudes slowly but surely were improving
towards the LGBTQ community.
I think we were increasing our numbers
of people who were progressive
and looking to make Cincinnati
a better place.
But John and I, we were never
what I would call activists.
We didn't contribute to campaigns.
We didn't campaign on anyone's behalf.
We didn't do any of that.
In some ways I think
we were a little divorced from reality
in that we weren't as involved politically
as perhaps we should've been.
But in some ways, I think living openly
as an open gay couple
is really a political act.
Just being you,
you help people learn that,
"Oh, LGBTQ people
really aren't that different than me."
"Here I thought they were
scary and horrible,
but no, they're really
just living their lives."
"And while it might be two men,
their life really isn't
that much different from my life."
Some people feel like
the LGBTQ movement happened fast.
Really fast.
I get it.
But whether some Americans
realize it or not,
it didn't appear out of thin air.
Decades of effort
went into the LGBTQ movement.
By the early 2000s,
Americans were seeing
more LGBTQ characters on TV.
I'm gay.
[woman]
The news began to share LGBTQ stories.
In people's personal lives,
friends and family members
started coming out.
So, if someone says
the LGBTQ movement happened too fast,
remember for generations,
LGBTQ activists have been
fighting for recognition.
And now we're all
enjoying the fruits of their labor.
[Adams] Lawrence v. Texas. Okay.
So, '86 Bowers versus Hardwick,
Court says if states want
to criminalize same-sex sexual conduct,
be my guest.
So, flash forward
to Lawrence versus Texas.
[Epps] In Lawrence, you had two adults
who had been arrested
and charged with a crime,
because in private they were
having sexual conduct,
and the state of Texas said
that it had the power to criminalize that.
[Adams] The Court in Lawrence
is looking at a state statute
very similar to the one that was at issue
in Bowers versus Hardwick.
The question for the Court now is,
does this statute violate the Due Process
Clause of the 14th Amendment?
In 2003, the Supreme Court
has four liberal justices
and five conservative justices.
But one, Anthony Kennedy,
sees the 14th just a little differently
than his conservative peers.
[man] "The petitioners are entitled
to respect for their private lives."
"Their right to liberty
under the Due Process Clause
gives them the full right
to engage in their conduct
without intervention of the government."
Justice Kennedy, writing for the Court,
does something
really interesting and different,
saying, you know, we have to pay attention
to the dignity of the individual.
[Kennedy] We conclude this case
should be resolved by determining
whether the petitioners
were free as adults
to engage in this private conduct
in the exercise of their liberty
under the Due Process Clause
of the 14th Amendment.
The Court said,
you can't outlaw people's intimate lives
just because you disapprove of them.
You have to show
that it's hurting society in some way.
There's no evidence that it is.
Gay people are living like everybody else.
[Kennedy] Our obligation
is to define the liberty of all…
[both] …not to mandate our own moral code.
[Kennedy] Bowers was not correct
when it was decided
and it is not correct today.
It ought not to remain
the binding precedent.
Bowers versus Hardwick should be,
and now is, overruled.
It's one of the few times
where the Court actually overrides
an earlier precedent to go the other way.
For the first time the Court says
that the right to choose your own partner
is one of those fundamental rights
protected by the Due Process Clause
in the 14th Amendment.
But there was a disagreement
within the Court.
[Kennedy] Justice Scalia
has filed a dissenting opinion…
[Epps] Scalia read from the bench,
which is something that justices do
only when they're very, very unhappy
with the results.
"Many Americans do not want homosexuals
to be partners in their business,
scoutmasters for their children,
or boarders in their home."
"They view this as protecting
themselves and their families
against a lifestyle they believe
to be immoral and destructive."
[Scalia] So imbued is the Court
with the law profession's
anti-anti-homosexual culture…
"…that it is seemingly unaware
that the attitudes of that culture
are not obviously mainstream."
He says the Court had been
captured by elitists,
it had been captured
by the homosexual agenda,
and that it had no business
getting involved in the culture war.
"Let me be clear that
I have nothing against homosexuals,
or any other group promoting their agenda
through democratic means,
but persuading one's fellow citizens
is one thing,
and imposing one's views
in absence of democratic majority will…"
- [mouths]
- [Scalia] …is something else.
[Epps] Scalia did say
in the years after Lawrence,
if I can't make laws against
behavior I consider immoral
just because I consider it immoral,
I can't run a legal system
that makes any sense,
because law has to be
based on social morality.
Well, Lawrence as it was written
took that particular
social disapproval off the table.
So, once it's established
that those relationships
are equal in respectability
to those between partners
of the opposite sex,
then the next question becomes,
"Okay, what's your reason
for saying we can't get married?"
[woman] A brief history
of gay marriage in the United States.
Two student activists, Richard Baker
and James Michael McConnell
applied for a marriage license
in Minnesota.
They were denied by the clerk
and by the courts,
but then, in Colorado,
a different clerk, Clela Rorex,
whose name is as unique
as her place in history,
did the unthinkable…
her job.
One of the couples
that Clela legally married
was Richard Adams, an American,
and Tony Sullivan, an Australian, like me.
G'day.
But even now legally married,
Tony was denied a green card.
The federal government claimed that
they'd "failed to establish that
a bona fide marital relationship
can exist between two faggots."
And in response to that delightful letter,
Tony and Richard filed the first lawsuit
to seek federal recognition
for same-sex marriage.
They lost.
And then, the '90s happened.
Present Clinton signs
the Defense of Marriage Act,
banning recognition
of all same-sex marriage.
Eventually he changed his mind.
Granted, it was after
he was out of office, so that's safe.
Federally, DOMA lived on
under President Bush,
but the states had a different opinion,
leading the charge
to legalize gay marriage.
All marriages are now equal.
[narrator]
Despite the Defense of Marriage Act,
courts in Massachusetts and Hawaii
decide in favor
of same-sex marriage cases.
But there's a backlash,
and in 2004,
thirteen states across the country
adopt same-sex marriage bans,
including Oregon, Michigan,
Kentucky, Utah, Louisiana and Ohio.
So, in 2011,
it was our 18th year together as a couple.
We had this tradition
of getting rings for anniversaries
and it really started
when we were together just seven weeks.
John gave me a diamond ring,
'cause he knew at that point
we were together for good.
I would say within
the first two years of our relationship,
we talked about marriage.
You know, we had friends who were
having commitment ceremonies,
but they weren't marriages.
We wanted to get married.
But we decided that, for us,
marriage has to be marriage,
it can't just be the symbolic gesture.
We want it to mean something legally.
We wanted a level of government to say,
"You guys matter. You exist. We see you."
From a state level we were being told,
"You can never get married."
And even if you were married legally
in another state,
and could show a marriage license,
the state of Ohio could say,
"It means nothing to us."
But John and I still were hopeful.
January of 2011,
I started to notice something different…
in the way John was walking.
It just sounded different.
It was like one foot
was slapping the floor
harder than the other.
It's such a minor thing, just this change
in the sound of the way someone walks
and it wasn't going away.
And I finally convinced him,
"Something's up here.
You really should go see the doctor."
"Jim," I said, "Call me
when you get the test results."
And he said he would.
And I didn't hear from him.
So, I called him
and Jim just started crying.
He said, "I'm so sorry
to tell you this over the phone.
I'm sorry to tell you, but it is ALS."
And I just…
I just felt like somebody
hit me in the chest with a baseball bat.
[Obergefell] He was diagnosed with ALS,
or Lou Gehrig's disease.
That was the start of it.
Left foot, moved into his left hand
and then his right side
started to join in.
[Tootie] As John got sicker and sicker,
Jim would just sit there
and look at him and love him.
He was with him every second.
So, our days were filled with watching TV,
holding hands,
knowing the end was coming
but not knowing exactly when.
So, on June 26th, 2013,
I was working at the dining table
and John called me from his room and said,
"Jim, come in."
So, I went into his room
and he was watching the news.
The Supreme Court has just struck down
the federal Defense of Marriage Act.
[Obergefell] Oh my God. [laughs]
If you're married, you get a different
level of benefits, usually higher.
And you might get some tax breaks,
like Edie Windsor.
Without recognition of her marriage,
she ended up having a $300,000 tax bill.
If her marriage had been recognized,
there'd be no tax,
so she had a lot at stake financially.
[Windsor] When my beautiful Thea died,
I was overcome with grief.
In the midst of my grief,
I realized that the federal government
was treating us as strangers.
[Gerhardstein] This gets up to
the Supreme Court,
and the Defense of Marriage Act
was struck down.
So I read this and I thought,
"This is huge,
and I would like
to give this marriage argument
a real shot."
[Obergefell] I'm standing next
to John's bed, holding his hand.
I leaned over,
hugged and kissed John, and said,
"Let's get married."
[Tootie] The phone rang and it was Jim,
and he said,
"What are you doing next week?"
And I said, "Why? What's happened?"
[Obergefell] Here we are living six blocks
from our county courthouse.
In a perfect world, I could've
just taken John in his wheelchair
to get our marriage license,
but not in Ohio.
That really left us one choice,
and that was a chartered medical jet.
So we settled on Maryland.
It was a quiet flight…
few words.
Landed at BWI and we parked on the tarmac.
[Tootie] Today is a momentous day,
not only in the lives of two of the most
loving and special men I have ever known,
also in the lives of all who know,
love, and respect them
and, in the larger sense,
for those Americans who have waited
to be recognized as equal under the law
and in matters of the heart.
It was a very short service, but…
I remember at the beginning of it I said,
"Would you two please take hands?"
And I looked and I realized that they had
never not been holding each other's hands.
Put it on upside down.
[Obergefell] We got to do something
we never thought we'd be able to do,
take each other's hands
and say, "I thee wed."
[Tootie] With the respect of the law
of our great land,
I now pronounce you husband and husband,
forever intertwined partners.
May love and goodwill be with you forever.
Let us all rejoice.
[camera clicks]
[John] I feel like the…
luckiest guy
in the world.
Just happy.
That's all I can say.
It was a happy occasion.
It was truly a happy occasion.
I've never been prouder to be an American
than I was that day.
- [man] How'd it go, Pastor?
- [Tootie] Good!
[poignant music playing]
[man] For John to take that ride,
for him to do that,
was just the culmination of who they were
as a couple
and what they meant to each other.
[Obergefell] By being able to make those
promises and commitments public and legal,
everything changed.
I think John and I used the word "husband"
a few thousand times every day.
"Would you like something to drink,
husband?"
"Is the volume okay, husband?"
"I love you, husband."
[Gerhardstein] I was at a picnic and we're
talking about the issues of the day,
including the Windsor decision,
and somebody says,
"Well, I have really good friends,
they were so excited
by the Windsor decision
that they flew to the airport in Baltimore
and got married right there
on the tarmac."
She says, "It's all gonna be in the paper
on Sunday." This is Friday night.
I said, "Well, that is exciting."
"I'm really happy for them."
"But, um,
you know that they've got a problem."
So, five days after we got married,
Al came to our home.
I brought one piece of paper with me.
I just brought a blank death certificate.
[Obergefell] He said, "Guys,
I'm sure you haven't talked about this
because why would you
think about a death certificate
when you just got married?"
"But do you understand that
when John dies,
his last official record as a person
will be wrong?"
"Ohio will say he was unmarried, single,
and, Jim, your name won't be there
as his surviving spouse."
And they were furious.
I can admit it, it pissed me off.
They wanted to know more.
I mean, what would it take?
We can do a copycat case.
We can walk in the shoes of Windsor
and just frame it the same way
they framed that case.
Um, I can't guarantee a win.
I can only guarantee my best efforts,
but I'm liking the chances.
[Obergefell] John, he thought
it was the right thing to do,
even though we both understood it meant
I would be stepping away from John
to devote some time to courtrooms,
to meetings.
To us, it was clear we had to do this.
So, John and I talked and very quickly
said, "Yes, we're in."
"Count us in. Let's do what we can."
[Gerhardstein]
So we filed three days later.
You have to understand
that I'm a trial lawyer.
I solve problems.
My clients' problem
was that they weren't going to get
an accurate death certificate.
So, that's all I need.
Shouldn't be too big a deal.
We're not trying to do anything
flashy, sexy, weird, unusual
here in little old Ohio.
We're just trying
to apply the Supreme Court precedent
and that's what we were doing.
- [man] Is that all that you were doing?
- No.
But it was a first step.
Same-sex marriage is legal in Maryland.
It's legal here.
[Obergefell] So, after we left court,
a few hours later
I was back home with John
and Aunt Tootie was there.
And the phone rang and Jim hung up and…
I'll never forget he said, "We won!"
He said, "It looks like we won!"
You know, it's something to see
somebody celebrating the fact
that his death certificate will be able
to show that he's a married man.
[Obergefell] It was a good day.
One of the happiest moments
towards the end of John's life.
I'm confident of that.
John got to live for three months
to the day after that decision.
This one evening I started reading
one of his favorite books to him,
Weaveworld by Clive Barker,
and over the next couple of hours
he just got quieter and quieter
[voice breaks]
and he went to sleep.
And I still remember
the last sentence I read,
"Lions, he'd come with lions."
[emotional music fading away]
[sighs] It was a beautiful love story.
That's all there is to it. It was
a beautiful love story before the illness
and it was
a fantastic love story afterwards.
John died on October 22nd, 2013
and we applied for the death certificate.
It came back with the right wording,
and we got what we sought.
But Ohio kept saying, "You know,
when we win this case on appeal
we're going to change all this back."
"We're going to honor
what the people voted for
when they banned same-sex marriage,
so this case is hardly over."
[narrator] Their fight
is just getting started.
Case Obergefell v. Hodges
goes all the way to the Supreme Court.
They're joined by couples across America
fighting to have their marriages
recognized by their state
or to have their state's
same-sex marriage bans overturned.
This is big.
This could be the 14th Amendment
doing what it does best.
Or will the Supreme Court
deny this basic human right?
In January of 2015, we got word
that the Supreme Court said,
"Yes, we will accept this case
and it will now be known
as Obergefell v. Hodges."
And so the question was,
does the 14th Amendment
require states to permit
same-sex couples to marry?
I needed to be in that courtroom
to hear everything that was said.
We got there at seven o'clock
in the morning.
The whole atmosphere,
there were the people that were there
in support of gay rights,
then there were the people
that were against it.
It was really something to watch.
[Obergefell]
Once we got into the courtroom,
we were seated over towards the side
to the left of the bench.
They only allow so many people in,
because it's not that big of a venue.
The courtroom was smaller than I expected.
I don't know, I had this image
of this enormous, grand courtroom.
[gavel bangs three times]
Then, the justices come in.
[man] We'll hear argument this morning
in case number 14-556,
Obergefell versus Hodges
and the consolidated cases.
One of my heroes is Ruth Bader Ginsburg,
and she's so small
that when she sits behind the podium
only, like, from her neck up shows,
but when she asks a question,
there's no doubt
that she's a very big presence.
[Ginsburg] But we have changed
our idea about marriage.
Marriage was a relationship
with a dominant male
to a subordinate female.
Would that be a choice that a state
should be allowed to have?
- To cling to marriage the way it once was?
- [man] No, absolutely not.
The justices are constantly stopping.
[man] I don't think
you answered my question.
Both sides.
[Scalia] It has nothing to do
with Article IV.
It's a constant give-and-take,
question-and-answer.
[man] Congress shall make no law
respecting the freedom of religion.
- [woman] Yes, and I…
- [man] It leaves this question open?
It's really amazing to watch.
I was certainly there
for the Obergefell argument
and I recall the lead counsel
defending the laws
against same-sex marriage.
He is asked by Justice Kennedy,
who's obviously, everyone knows,
the important vote in this case,
"What about respect for the dignity
of the couple?"
And the Solicitor General of Michigan
says,
"The state of Michigan has no interest
in the dignity of couples."
And people, including me, I have to say,
around the courtroom went, "What?"
- [gavel bangs]
- [man] Case is submitted.
[Gerhardstein] So,
the oral arguments end and,
well, you don't really know when
the Court's gonna announce its decision.
So, Jim was going to every decision day
for two months.
A few years ago, had anyone asked me,
"Jim, what's the 14th Amendment?"
I would have had no idea.
My knowledge of the Constitution
was pretty common.
I could rattle off
some of the amendments, you know.
At least what they stood for,
not necessarily numbers.
But I really didn't know the Constitution.
And yet, that Amendment
underpins this decision.
[tense music plays]
[gavel bangs three times]
Chief Justice says Justice Kennedy
will read the first decision.
[man] Justice Kennedy has our opinion
in case 14-556, Obergefell versus Hodges.
I startled in my chair and I…
took my friend's hands
and thought, "Okay, here it comes."
"The nature of injustice is that we may
not always see it in our own times."
"The generations that wrote and ratified
the Bill of Rights and the 14th Amendment
did not presume to know
the extent of freedoms
in all of its dimensions,
and so they entrusted
to future generations
a charter
protecting the right of all persons
to enjoy liberty as we learn its meaning."
[gentle piano music]
[voice breaks] Everyone knew…
the significance…
of what was happening.
"No union is more profound than marriage,
for it embodies
the highest ideals of love,
fidelity, devotion, sacrifice and family."
"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 immutable nature dictates…
that same sex marriage
is their only real path
to this profound commitment."
"They ask for equal dignity
in the eyes of the law."
"The Constitution grants them that right."
I remember looking out
and seeing the faces of these people,
some of them openly weeping like children,
tears running down their cheeks.
No one's hard-edged
around something that profound.
It was one of the most amazing moments
I've ever seen.
I will tell my children,
I will tell my grandchildren
that I was there when the Court said,
"The door is open, you can walk through,
you are full members of society."
[emotional music playing]
[cheering and whistling]
[Obergefell] My first thought was,
"John, I miss you. I wish you were here."
"I wish you could know we won.
I wish you could experience this."
And that…
emotion, that feeling was quickly
followed by a surprising realization.
It was the first time in my life
as an out gay man…
that I felt like an equal American.
[cheering]
[reporter] Standby. We want to go back now
to the Supreme Court.
You see some of the interns
running out with the decision
[reporter 2] Here come our intern now
with the decision.
The Court has handed down its ruling.
Here it is.
This is what it says.
"The 14th Amendment requires a state
to license a marriage
between two people of the same sex
and to recognize a marriage
between two people of the same sex…"
[Obergefell] So I sat in that courtroom
between my friends
knowing that word has gotten out
to the crowd out front
and that there's a party going on,
people are celebrating
and all I can think is, "Come on,
wrap this up. I want to go." [laughs]
[cheering]
Al and I are arm in arm
and we're leading our group
and the crowd just split before us.
We would take a step
and it would split further,
and people were crying and cheering,
singing, celebrating.
[Gerhardstein]
You get out on the front steps
and you've got protesters on both sides,
you've got these amazing choirs singing
and, like, a totally discordant thing
'cause all the sound's happening at once
and all the media's crowding around him
and Jim's talking to 25 microphones.
I want to thank my legal team.
And especially Al Gerhardstein,
who stood by me
every single step of the way.
He gets a call from the President.
- Hi. Is this Jim?
- Yes, it is, Mr. President.
I just wanted to say congratulations.
And while he's talking to the President,
Vice President Biden goes to voicemail.
Not only have you been
a great example for people,
but you're also going to bring about
a lasting change in this country.
Yeah. Thank you.
I mean, it's just one of those moments
that you just can't do a do-over on that
and you don't want to.
[Obergefell] It was an amazing experience
to walk through the crowd
and to feel the love.
[chanting]
Love is love! Love is love!
The day ends in Cincinnati
with gay couples getting married
and the celebration is kicked off.
[man] And so, by the power
conferred by the Supreme Court
of the United States of America,
we rejoice today in the power of love.
You may seal your vows with a kiss.
[applause]
[Gerhardstein] And it continued
the next day with Gay Pride Day.
I mean, how many cases end
with a parade
through the center of the city
and everybody going absolutely nuts?
- [cheering]
- Happy Pride!
[Tootie] There were so many young people
lining those streets
and they were looking at Jim
and just quietly moving their lips,
"Thank you, thank you."
I'm talking about hundreds of faces
saying, "This is the way it should be."
[Obergefell] To go through this city
that had changed so drastically,
the most gay-unfriendly city
in the nation,
to this wonderful, welcoming place…
…I'll never forget that.
John would just… [laughs]
John would think this was
the most hilarious thing.
If you told him that his medical condition
somehow had led to a historic sea change
in the United States legal system,
he would probably give you that look.
[Tootie] You know, like,
"Let me tell you."
That kind of expression.
But I can see him saying,
"See, Aunt Tootie,
it really is all about love."
[laughs]
"That's what it's about."
You know, explaining it to me.
So, I think that's what he would say.
And I think he would be
just incredibly proud
that his marriage was part of it.
[hopeful instrumental music]
[Epps] It was yet another lesson
that conscientious attempts
to apply the Constitution's rules
to our national life
can produce extraordinary moments.
This is the heart of the 14th Amendment,
the original meaning of civil rights were
the rights that you must have as a person
in order to be fully present in society.
By recognizing this concept
of the basic civil rights,
the basic rights of humanity,
you know, we move forward over 150 years
and we're still figuring out
what that means.
So, the 14th Amendment,
while many years ago
I couldn't have told you
one thing about it,
now I know the 14th Amendment
and I understand how that amendment
is such an important tool
in ensuring that we are treated equally.
It helps move us towards
our American value of "We the People,"
and living up to those commitments
is one of the most meaningful things.
That's what drove me,
I had to live up to my promises to John.
I did this because I loved him and…
love wins.
It certainly did that day.
[upbeat music playing]
[narrator] Marriage equality shows
the 14th can be a beacon of inclusivity,
a bridge to an America that
honors the love we have for each other.
Thanks in part to 14,
the LGBTQ community has gone
from being seen as a feared other
to being treated as people,
as living, breathing human beings
who deserve equal rights.
And in the same way,
another group has been
struggling for America
to recognize their shared humanity.
They too want 14 to be a bridge
to the American Dream,
but instead, they've hit a wall.
[contemporary instrumental music plays]
[atmospheric music]
[Jones] In my life,
when it comes to the 14th Amendment,
there's probably no more central moment
than the case of Loving versus Virginia.
Hi, I'm Martha Jones,
Professor of History
at Johns Hopkins University.
In 1967, in 18 states
the marriages between white and people
said to be not white weren't recognized.
Loving versus Virginia
is that moment when the US Supreme Court
finally strikes down what we term
anti-miscegenation laws.
But…
um, my parents were married in 1957,
ten years earlier.
My mother, a white American woman,
my father, an African American man.
They couldn't be married
in his home state.
They were married in New York.
They were reviled and ridiculed.
We, their children, were branded… [sighs]
… "unfortunates," and worse.
I am a child of Loving versus Virginia,
which is to say…
that as I try and make s…
[voice breaks] sense of my own life…
[tuts] Shoot.
You told me this was gonna happen.
[quietly] One sec.
Um, Loving we owe to the 14th Amendment.
It's the Equal Protection Clause
that is going to expressly be the vehicle
for talking about
inequality before the law.
The case lends my family a kind of…
legitimacy.
So, when I think about my own story,
I think about the folks
who waged those tireless
and oftentimes thankless campaigns
to breathe into the Constitution
some kind of meaning that helps
to make my life make sense.
That's my story.
["Have Some Love"
by Childish Gambino playing]
Have a word for your brother ♪
Have some time for one another… ♪
[narrator] We are gathered here today
to celebrate the marriage
of the 14th Amendment…
and marriage.
Now, marriage is a symbol of your love,
your commitment,
and it's a legal bond.
The government believes that marriage
is so essential to our society
that it gives married couples
benefits and legal protections
that keep families whole.
Now, you might not know it,
but marriage and the 14th
have a long history together.
Before the Civil War,
enslaved people
had no legal right to marry.
Without that legal recognition,
they could be ripped apart
from their spouses
and children at any time.
Only after emancipation
and with the protections of 14
could formerly enslaved people
finally legally marry.
["Unchained Melody"
by Andy Williams playing]
Oh, my love ♪
My darling, I've hungered… ♪
So, when same-sex marriage
comes before the Court in 2015,
it's not just about love.
It's about being seen
and accepted by the government
as full and equal citizens.
[man] The present laws give the choice
of being heterosexual and legal
or homosexual and illegal.
[man 2] Do you remember how you felt when
you first realized you were a homosexual?
Frightened.
I didn't want to be different.
I didn't want to stand out.
I wanted to have everything
that everybody else had.
…your love ♪
Nothing more and nothing less.
…to me ♪
[bright music playing]
I would say the first time I started
to know that I was different
was probably when I was eight
or nine years old.
I remember after the family was finished
with the Sears or JCPenney catalogs,
and they were thrown out,
I would fish those catalogs
out of the trash.
And I did that because I wanted
to cut out the pages of men's underwear.
Now, I couldn't tell you why,
I just knew I wanted those pages.
They, they meant something to me.
But I also realized that I felt…
a sense of shame, like somehow
I knew it was wrong to do that.
And that sense of shame
finally got the better of me
and I actually burned those pictures
in a coffee can in the basement.
Starting in middle school,
I sang in the choir, I did musicals,
stereotypical gay things.
I didn't play sports.
Just one of those kids
who checked a lot of those boxes
of, "Oh, he must be gay."
As I started to get older,
the closet door creaked open a little bit,
but I quickly slammed it shut
because at that point I was still
coming to terms with being gay.
[woman] "The discovery of one's sexual
preference doesn't have to be a trauma."
"It's a trauma
because it's such a traumatized society."
[man] One never knows
when the homosexual is about.
He may appear normal,
and it may be too late
when you discover he is mentally ill.
A sickness that was not visible
like smallpox,
but no less dangerous and contagious,
a sickness of the mind.
[Baldwin] If a man's sexuality is gone,
then his possibility,
his hope of loving is also gone.
[as Baldwin]
"The so-called straight person
is no safer than I am, really."
"Loving anybody,
being loved by anybody,
is a tremendous danger,
a tremendous responsibility."
[Baldwin] It's a journey
which both people have got to make
with each other.
[Obergefell] The first time I met John
was a couple months before I came out
and he was so comfortable in his skin
as an out gay man
that it scared me.
But I was still closeted,
so that was one of those moments
when you meet a friend's friend.
We chatted for a bit and that was it.
At that point, I just wasn't ready
to admit to anyone else that I was gay.
The second time John and I met,
we started talking
and at some point John said,
"Well, Jim, you'd never go out
with someone like me."
And I still don't know
where I had the wit or the courage
to respond the way that I did,
but I said, "Well, how do you know?
You've never asked."
But he didn't,
so that was meeting number two.
The third time, I was back
in Cincinnati for the holidays
and John was
having a New Year's Eve party.
So, I went to the party at John's house
and we met for the third time
and I never left.
John and I would always joke
that for us it wasn't love at first sight,
it was love at third sight. [chuckles]
And I met Jim and I really liked Jim,
but the thing that made me
love him the most
was, in John's entire life,
I had never seen him that happy.
[Obergefell] It really was just
a happy life of living in Cincinnati
and just being a couple
and making friends.
Pretty darn boring!
But at that point,
Cincinnati was not a great place to be
for the LGBTQ community,
for any community that was different.
[narrator] When it comes to LGBTQ rights,
Cincinnati in the '80s and '90s is,
a lot like Cincinnati in the '50s,
or any other big city
in the United States at that time.
The message to its LGBTQ citizens is,
be quiet,
stay hidden or get out.
- America, you're at your best! ♪
- America, you're at your best! ♪
America, you're at your best
in Cincinnati! ♪
I've been telling law students
who want to be civil rights lawyers
for 40 years,
"If you really want the work,
go to the Midwest."
When we moved to Cincinnati,
it still had Klan rallies,
burning a cross on Fountain Square.
[reporter] A Cincinnati art gallery
and its director went on trial
in Cincinnati for obscenity.
[Gerhardstein] The Mapplethorpe exhibit
was an example
of just where Cincinnati was at the time.
It was just too much for the city.
We were in a very, very dark period.
And I felt,
as a budding civil rights lawyer,
I had a huge amount of work to do.
I started representing low-income people
with respect to public benefits.
We did an employment project
to try and help people get jobs.
I wanted to make sure
that the American Dream
was available to everyone.
After a few years,
I began to meet person after person
who was fired
simply because they were gay.
I brought one case after another,
trying to figure out ways
to get them equal protection
under the existing law.
I lost every one of those cases.
So, we decided to start
knocking on the door
of the Cincinnati City Council.
We brought all these clients in
and they explained
what it felt like to be fired
for a status you had no power over,
and we were able to convince the council
to pass a human rights ordinance.
This was huge.
You can't fire somebody
simply because they're gay.
It was a great day
and there was a lot of celebration.
But…
right there on the wings
of our celebration
was the dark cloud
of Citizens for Community Values.
The 1964 Civil Rights Act
identified persons based on, you know,
something you could see,
something you could identify,
not behavior.
And for someone to come along
and claim minority status
based on behavior,
think what that would do.
That just opens Pandora's Box.
[Gerhardstein] These forces
that were aligned against us
proposed a charter amendment
called Article 12.
[reporter]The actual wording
of the proposed amendment is as follows.
"The City of Cincinnati
may not enact any ordinance,
regulation, rule or policy
which provides that homosexual orientation
provides a person with a basis
to have any claim
of preferential treatment."
[Gerhardstein] Article 12
was passed by 64% of the vote
and that repealed
the Cincinnati Human Rights Ordinance
and it barred the city from offering
any protection of any kind
for what they called
homosexuals, bisexuals,
uh, or lesbians forever.
[Obergefell] We officially became
the most gay-unfriendly city
in the nation.
It was really devastating
to have this pass
and to know that our fellow citizens
thought that we did not
deserve protections of any sort.
They're up in arms because they're
not getting certain privileges and rights.
There's something wrong. They're abnormal,
and I don't think it's normal.
[Obergefell] There was just
a lot of anger and discrimination
towards the LGBTQ community.
It makes you sick and stuff saying,
"He's gay," "She's a lesbian," and stuff.
You know?
It should be kept in your own home.
Definitely.
[Obergefell] In this environment,
LGBTQ people were expected to be quiet
and not raise a ruckus, and just fit in.
If you look a certain way,
if you act a certain way,
you're okay.
We were okay because we didn't
wave our own personal Pride flag.
We fit into what the people in Cincinnati
expected from two Caucasian young men.
It was a frightful time
to be gay in that city.
[Gerhardstein]
We were the only city in America
with a formal statement
of hatred against gays.
How can this be legal in America?
When we founded our government
a second time,
and that's what the 14th Amendment is,
we said that all persons
are entitled to equal protection
under the law.
So, we sued to challenge
the constitutionality of Article 12.
[news jingle]
Good evening. The gay rights battle
in Cincinnati didn't end on election day.
[reporter] Legal experts think
that this type of legislation
may not stand up
to the Constitutional test.
But there's a huge challenge in this case
that we haven't talked about yet.
And that is that in 1986,
the US Supreme Court
had decided Bowers versus Hardwick.
[man] Mister Chief Justice,
and may it please the Court,
this case presents the question
of whether or not
there is a fundamental right
to engage in consensual homosexual sodomy.
[narrator] Are we really debating
consensual sexual activity here?
I'm just saying,
if somebody tried to tell you
that what you and your partner
do in your bedroom is illegal,
I mean, I bet you'd feel
some kind of way about that.
[jaunty music]
[sighs]
[inhales]
[exhales and clears throat]
You know the moment in a romantic comedy
when everything goes wrong?
Girl spills latte all over guy,
or guy confesses his love to girl
seconds before her wedding.
For Michael Hardwick,
his rom-com goes really wrong
when a police officer
walks in on private time
between him and his boyfriend.
And in 1982 in Georgia,
some private acts are punishable
by up to 20 years of jail time.
But although the charges were dropped,
for Michael his fight
was just getting started.
He sued the state of Georgia
and eventually his case
made it to the Supreme Court.
Hardwick's lawyers argue
that the 14th Amendment
protects a person's right to privacy,
which definitely
includes a person's bedroom.
[woman] How do we get here?
Go back to the 14th Amendment,
Section One.
The argument was
that a law that made it a crime
to engage in sex,
deprived the individual of liberty
without due process of law.
It's about how you have this right
to be able to make the choice
about who you want to love.
Maybe it's not written down,
but it's so important
that we're just gonna assume
that it's in the Constitution.
The Court, on a close 5-4 decision,
ruled that homosexual claims
of a right to participate in sodomy
were not protected by the Constitution.
[reporter] Justice White wondered
if the Court would be asked
to give the okay to adultery and incest.
The Supreme Court comes down
and says that under the 14th Amendment,
these are not rights
protected by the Constitution.
I got shot up in Vietnam and I come back
and they tell me the Constitution
doesn't belong to me.
Well, I say bull [bleep]
[Rahman] A lot of people likened it to
Plessy or Dred Scott,
a Supreme Court decision
that puts them back
in a second-class citizenship position.
Equal justice under the law!
We're not getting equal rights!
[man] The Court basically said
there's no protection for gay people.
They can be put in jail…
for gay sexual conduct.
This was one of the most
disgraceful decisions in the 20th century.
[reporter] One of those arrested
was Michael Hardwick of Atlanta.
[Gerhardstein]
Bowers was a huge roadblock for progress.
It gave our government license
to discriminate against gay people.
And so every time you raise the notion
of equal rights for gay people,
I'd have Bowers thrown in my face.
And, lo and behold, that's what happened
in the Sixth Circuit Court of Appeals.
[woman] "Mr. Gerhardstein,
since Bowers, every Circuit Court
which has addressed the issue
decreed that homosexuals are entitled
to no special Constitutional protection
as a special class,
because it's pretty hard to identify
in any individual homosexuality,
is it not?"
"How are we even gonna
identify who they are?"
I remember that exchange,
and I remember the difficulty
Judge Kennedy had with this point
as if… she wanted to know…
who they were.
"Many homosexuals
successfully conceal their orientation,
and because homosexuals
are not identifiable on sight,
unless they choose to be identifiable
by their conduct,
they just can't
constitute a special class."
I actually have relived
this part of the argument
and I want I want a do over,
'cause I wanna turn to…
[solemnly] I wanna turn to the crowd.
The court room was packed.
[voice breaks] And I wanna ask
all the gays to stand up.
[inaudible]
[inhales, then sighs]
They were all around her.
Then I thought, "That's not fair."
I mean, we're still living under Bowers.
Maybe just being identified
is going to put them at risk.
We had won zero protection
for these people.
When you lose a case of this consequence,
when you leave a city this defenseless,
when you leave people this lonely…
[voice breaks] …it's hard
not to take it personally.
- [gavel bangs]
- [background chatter]
[man] Invisibility.
Marginalized groups feel it all too often.
Black people's skin has traditionally
made us so invisible to society
that we have had to literally
paint our existence onto the streets.
Unlike the Black community,
the LGBTQ community's invisibility
comes from being forced to hide.
They've had to live in the closet
or face persecution,
being arrested, fired,
ostracized from their family or worse.
And because they've had to hide,
society tells us they simply don't exist.
Art by LGBTQ people
is suppressed or coded,
their identities are erased from history.
As LGBTQ poet and essayist
Adrienne Rich says,
"When someone describes the world
and you're not in it,
there's a moment
of psychic disequilibrium,
as if you looked in a mirror
and saw nothing."
[exhales sharply]
Can you imagine that?
Well, the sad thing is,
too many people can.
[traffic whooshes]
[people chatter]
[horns beep]
[Obergefell] You know, amazingly enough,
Cincinnati really started to change
in the early 2000s.
Attitudes slowly but surely were improving
towards the LGBTQ community.
I think we were increasing our numbers
of people who were progressive
and looking to make Cincinnati
a better place.
But John and I, we were never
what I would call activists.
We didn't contribute to campaigns.
We didn't campaign on anyone's behalf.
We didn't do any of that.
In some ways I think
we were a little divorced from reality
in that we weren't as involved politically
as perhaps we should've been.
But in some ways, I think living openly
as an open gay couple
is really a political act.
Just being you,
you help people learn that,
"Oh, LGBTQ people
really aren't that different than me."
"Here I thought they were
scary and horrible,
but no, they're really
just living their lives."
"And while it might be two men,
their life really isn't
that much different from my life."
Some people feel like
the LGBTQ movement happened fast.
Really fast.
I get it.
But whether some Americans
realize it or not,
it didn't appear out of thin air.
Decades of effort
went into the LGBTQ movement.
By the early 2000s,
Americans were seeing
more LGBTQ characters on TV.
I'm gay.
[woman]
The news began to share LGBTQ stories.
In people's personal lives,
friends and family members
started coming out.
So, if someone says
the LGBTQ movement happened too fast,
remember for generations,
LGBTQ activists have been
fighting for recognition.
And now we're all
enjoying the fruits of their labor.
[Adams] Lawrence v. Texas. Okay.
So, '86 Bowers versus Hardwick,
Court says if states want
to criminalize same-sex sexual conduct,
be my guest.
So, flash forward
to Lawrence versus Texas.
[Epps] In Lawrence, you had two adults
who had been arrested
and charged with a crime,
because in private they were
having sexual conduct,
and the state of Texas said
that it had the power to criminalize that.
[Adams] The Court in Lawrence
is looking at a state statute
very similar to the one that was at issue
in Bowers versus Hardwick.
The question for the Court now is,
does this statute violate the Due Process
Clause of the 14th Amendment?
In 2003, the Supreme Court
has four liberal justices
and five conservative justices.
But one, Anthony Kennedy,
sees the 14th just a little differently
than his conservative peers.
[man] "The petitioners are entitled
to respect for their private lives."
"Their right to liberty
under the Due Process Clause
gives them the full right
to engage in their conduct
without intervention of the government."
Justice Kennedy, writing for the Court,
does something
really interesting and different,
saying, you know, we have to pay attention
to the dignity of the individual.
[Kennedy] We conclude this case
should be resolved by determining
whether the petitioners
were free as adults
to engage in this private conduct
in the exercise of their liberty
under the Due Process Clause
of the 14th Amendment.
The Court said,
you can't outlaw people's intimate lives
just because you disapprove of them.
You have to show
that it's hurting society in some way.
There's no evidence that it is.
Gay people are living like everybody else.
[Kennedy] Our obligation
is to define the liberty of all…
[both] …not to mandate our own moral code.
[Kennedy] Bowers was not correct
when it was decided
and it is not correct today.
It ought not to remain
the binding precedent.
Bowers versus Hardwick should be,
and now is, overruled.
It's one of the few times
where the Court actually overrides
an earlier precedent to go the other way.
For the first time the Court says
that the right to choose your own partner
is one of those fundamental rights
protected by the Due Process Clause
in the 14th Amendment.
But there was a disagreement
within the Court.
[Kennedy] Justice Scalia
has filed a dissenting opinion…
[Epps] Scalia read from the bench,
which is something that justices do
only when they're very, very unhappy
with the results.
"Many Americans do not want homosexuals
to be partners in their business,
scoutmasters for their children,
or boarders in their home."
"They view this as protecting
themselves and their families
against a lifestyle they believe
to be immoral and destructive."
[Scalia] So imbued is the Court
with the law profession's
anti-anti-homosexual culture…
"…that it is seemingly unaware
that the attitudes of that culture
are not obviously mainstream."
He says the Court had been
captured by elitists,
it had been captured
by the homosexual agenda,
and that it had no business
getting involved in the culture war.
"Let me be clear that
I have nothing against homosexuals,
or any other group promoting their agenda
through democratic means,
but persuading one's fellow citizens
is one thing,
and imposing one's views
in absence of democratic majority will…"
- [mouths]
- [Scalia] …is something else.
[Epps] Scalia did say
in the years after Lawrence,
if I can't make laws against
behavior I consider immoral
just because I consider it immoral,
I can't run a legal system
that makes any sense,
because law has to be
based on social morality.
Well, Lawrence as it was written
took that particular
social disapproval off the table.
So, once it's established
that those relationships
are equal in respectability
to those between partners
of the opposite sex,
then the next question becomes,
"Okay, what's your reason
for saying we can't get married?"
[woman] A brief history
of gay marriage in the United States.
Two student activists, Richard Baker
and James Michael McConnell
applied for a marriage license
in Minnesota.
They were denied by the clerk
and by the courts,
but then, in Colorado,
a different clerk, Clela Rorex,
whose name is as unique
as her place in history,
did the unthinkable…
her job.
One of the couples
that Clela legally married
was Richard Adams, an American,
and Tony Sullivan, an Australian, like me.
G'day.
But even now legally married,
Tony was denied a green card.
The federal government claimed that
they'd "failed to establish that
a bona fide marital relationship
can exist between two faggots."
And in response to that delightful letter,
Tony and Richard filed the first lawsuit
to seek federal recognition
for same-sex marriage.
They lost.
And then, the '90s happened.
Present Clinton signs
the Defense of Marriage Act,
banning recognition
of all same-sex marriage.
Eventually he changed his mind.
Granted, it was after
he was out of office, so that's safe.
Federally, DOMA lived on
under President Bush,
but the states had a different opinion,
leading the charge
to legalize gay marriage.
All marriages are now equal.
[narrator]
Despite the Defense of Marriage Act,
courts in Massachusetts and Hawaii
decide in favor
of same-sex marriage cases.
But there's a backlash,
and in 2004,
thirteen states across the country
adopt same-sex marriage bans,
including Oregon, Michigan,
Kentucky, Utah, Louisiana and Ohio.
So, in 2011,
it was our 18th year together as a couple.
We had this tradition
of getting rings for anniversaries
and it really started
when we were together just seven weeks.
John gave me a diamond ring,
'cause he knew at that point
we were together for good.
I would say within
the first two years of our relationship,
we talked about marriage.
You know, we had friends who were
having commitment ceremonies,
but they weren't marriages.
We wanted to get married.
But we decided that, for us,
marriage has to be marriage,
it can't just be the symbolic gesture.
We want it to mean something legally.
We wanted a level of government to say,
"You guys matter. You exist. We see you."
From a state level we were being told,
"You can never get married."
And even if you were married legally
in another state,
and could show a marriage license,
the state of Ohio could say,
"It means nothing to us."
But John and I still were hopeful.
January of 2011,
I started to notice something different…
in the way John was walking.
It just sounded different.
It was like one foot
was slapping the floor
harder than the other.
It's such a minor thing, just this change
in the sound of the way someone walks
and it wasn't going away.
And I finally convinced him,
"Something's up here.
You really should go see the doctor."
"Jim," I said, "Call me
when you get the test results."
And he said he would.
And I didn't hear from him.
So, I called him
and Jim just started crying.
He said, "I'm so sorry
to tell you this over the phone.
I'm sorry to tell you, but it is ALS."
And I just…
I just felt like somebody
hit me in the chest with a baseball bat.
[Obergefell] He was diagnosed with ALS,
or Lou Gehrig's disease.
That was the start of it.
Left foot, moved into his left hand
and then his right side
started to join in.
[Tootie] As John got sicker and sicker,
Jim would just sit there
and look at him and love him.
He was with him every second.
So, our days were filled with watching TV,
holding hands,
knowing the end was coming
but not knowing exactly when.
So, on June 26th, 2013,
I was working at the dining table
and John called me from his room and said,
"Jim, come in."
So, I went into his room
and he was watching the news.
The Supreme Court has just struck down
the federal Defense of Marriage Act.
[Obergefell] Oh my God. [laughs]
If you're married, you get a different
level of benefits, usually higher.
And you might get some tax breaks,
like Edie Windsor.
Without recognition of her marriage,
she ended up having a $300,000 tax bill.
If her marriage had been recognized,
there'd be no tax,
so she had a lot at stake financially.
[Windsor] When my beautiful Thea died,
I was overcome with grief.
In the midst of my grief,
I realized that the federal government
was treating us as strangers.
[Gerhardstein] This gets up to
the Supreme Court,
and the Defense of Marriage Act
was struck down.
So I read this and I thought,
"This is huge,
and I would like
to give this marriage argument
a real shot."
[Obergefell] I'm standing next
to John's bed, holding his hand.
I leaned over,
hugged and kissed John, and said,
"Let's get married."
[Tootie] The phone rang and it was Jim,
and he said,
"What are you doing next week?"
And I said, "Why? What's happened?"
[Obergefell] Here we are living six blocks
from our county courthouse.
In a perfect world, I could've
just taken John in his wheelchair
to get our marriage license,
but not in Ohio.
That really left us one choice,
and that was a chartered medical jet.
So we settled on Maryland.
It was a quiet flight…
few words.
Landed at BWI and we parked on the tarmac.
[Tootie] Today is a momentous day,
not only in the lives of two of the most
loving and special men I have ever known,
also in the lives of all who know,
love, and respect them
and, in the larger sense,
for those Americans who have waited
to be recognized as equal under the law
and in matters of the heart.
It was a very short service, but…
I remember at the beginning of it I said,
"Would you two please take hands?"
And I looked and I realized that they had
never not been holding each other's hands.
Put it on upside down.
[Obergefell] We got to do something
we never thought we'd be able to do,
take each other's hands
and say, "I thee wed."
[Tootie] With the respect of the law
of our great land,
I now pronounce you husband and husband,
forever intertwined partners.
May love and goodwill be with you forever.
Let us all rejoice.
[camera clicks]
[John] I feel like the…
luckiest guy
in the world.
Just happy.
That's all I can say.
It was a happy occasion.
It was truly a happy occasion.
I've never been prouder to be an American
than I was that day.
- [man] How'd it go, Pastor?
- [Tootie] Good!
[poignant music playing]
[man] For John to take that ride,
for him to do that,
was just the culmination of who they were
as a couple
and what they meant to each other.
[Obergefell] By being able to make those
promises and commitments public and legal,
everything changed.
I think John and I used the word "husband"
a few thousand times every day.
"Would you like something to drink,
husband?"
"Is the volume okay, husband?"
"I love you, husband."
[Gerhardstein] I was at a picnic and we're
talking about the issues of the day,
including the Windsor decision,
and somebody says,
"Well, I have really good friends,
they were so excited
by the Windsor decision
that they flew to the airport in Baltimore
and got married right there
on the tarmac."
She says, "It's all gonna be in the paper
on Sunday." This is Friday night.
I said, "Well, that is exciting."
"I'm really happy for them."
"But, um,
you know that they've got a problem."
So, five days after we got married,
Al came to our home.
I brought one piece of paper with me.
I just brought a blank death certificate.
[Obergefell] He said, "Guys,
I'm sure you haven't talked about this
because why would you
think about a death certificate
when you just got married?"
"But do you understand that
when John dies,
his last official record as a person
will be wrong?"
"Ohio will say he was unmarried, single,
and, Jim, your name won't be there
as his surviving spouse."
And they were furious.
I can admit it, it pissed me off.
They wanted to know more.
I mean, what would it take?
We can do a copycat case.
We can walk in the shoes of Windsor
and just frame it the same way
they framed that case.
Um, I can't guarantee a win.
I can only guarantee my best efforts,
but I'm liking the chances.
[Obergefell] John, he thought
it was the right thing to do,
even though we both understood it meant
I would be stepping away from John
to devote some time to courtrooms,
to meetings.
To us, it was clear we had to do this.
So, John and I talked and very quickly
said, "Yes, we're in."
"Count us in. Let's do what we can."
[Gerhardstein]
So we filed three days later.
You have to understand
that I'm a trial lawyer.
I solve problems.
My clients' problem
was that they weren't going to get
an accurate death certificate.
So, that's all I need.
Shouldn't be too big a deal.
We're not trying to do anything
flashy, sexy, weird, unusual
here in little old Ohio.
We're just trying
to apply the Supreme Court precedent
and that's what we were doing.
- [man] Is that all that you were doing?
- No.
But it was a first step.
Same-sex marriage is legal in Maryland.
It's legal here.
[Obergefell] So, after we left court,
a few hours later
I was back home with John
and Aunt Tootie was there.
And the phone rang and Jim hung up and…
I'll never forget he said, "We won!"
He said, "It looks like we won!"
You know, it's something to see
somebody celebrating the fact
that his death certificate will be able
to show that he's a married man.
[Obergefell] It was a good day.
One of the happiest moments
towards the end of John's life.
I'm confident of that.
John got to live for three months
to the day after that decision.
This one evening I started reading
one of his favorite books to him,
Weaveworld by Clive Barker,
and over the next couple of hours
he just got quieter and quieter
[voice breaks]
and he went to sleep.
And I still remember
the last sentence I read,
"Lions, he'd come with lions."
[emotional music fading away]
[sighs] It was a beautiful love story.
That's all there is to it. It was
a beautiful love story before the illness
and it was
a fantastic love story afterwards.
John died on October 22nd, 2013
and we applied for the death certificate.
It came back with the right wording,
and we got what we sought.
But Ohio kept saying, "You know,
when we win this case on appeal
we're going to change all this back."
"We're going to honor
what the people voted for
when they banned same-sex marriage,
so this case is hardly over."
[narrator] Their fight
is just getting started.
Case Obergefell v. Hodges
goes all the way to the Supreme Court.
They're joined by couples across America
fighting to have their marriages
recognized by their state
or to have their state's
same-sex marriage bans overturned.
This is big.
This could be the 14th Amendment
doing what it does best.
Or will the Supreme Court
deny this basic human right?
In January of 2015, we got word
that the Supreme Court said,
"Yes, we will accept this case
and it will now be known
as Obergefell v. Hodges."
And so the question was,
does the 14th Amendment
require states to permit
same-sex couples to marry?
I needed to be in that courtroom
to hear everything that was said.
We got there at seven o'clock
in the morning.
The whole atmosphere,
there were the people that were there
in support of gay rights,
then there were the people
that were against it.
It was really something to watch.
[Obergefell]
Once we got into the courtroom,
we were seated over towards the side
to the left of the bench.
They only allow so many people in,
because it's not that big of a venue.
The courtroom was smaller than I expected.
I don't know, I had this image
of this enormous, grand courtroom.
[gavel bangs three times]
Then, the justices come in.
[man] We'll hear argument this morning
in case number 14-556,
Obergefell versus Hodges
and the consolidated cases.
One of my heroes is Ruth Bader Ginsburg,
and she's so small
that when she sits behind the podium
only, like, from her neck up shows,
but when she asks a question,
there's no doubt
that she's a very big presence.
[Ginsburg] But we have changed
our idea about marriage.
Marriage was a relationship
with a dominant male
to a subordinate female.
Would that be a choice that a state
should be allowed to have?
- To cling to marriage the way it once was?
- [man] No, absolutely not.
The justices are constantly stopping.
[man] I don't think
you answered my question.
Both sides.
[Scalia] It has nothing to do
with Article IV.
It's a constant give-and-take,
question-and-answer.
[man] Congress shall make no law
respecting the freedom of religion.
- [woman] Yes, and I…
- [man] It leaves this question open?
It's really amazing to watch.
I was certainly there
for the Obergefell argument
and I recall the lead counsel
defending the laws
against same-sex marriage.
He is asked by Justice Kennedy,
who's obviously, everyone knows,
the important vote in this case,
"What about respect for the dignity
of the couple?"
And the Solicitor General of Michigan
says,
"The state of Michigan has no interest
in the dignity of couples."
And people, including me, I have to say,
around the courtroom went, "What?"
- [gavel bangs]
- [man] Case is submitted.
[Gerhardstein] So,
the oral arguments end and,
well, you don't really know when
the Court's gonna announce its decision.
So, Jim was going to every decision day
for two months.
A few years ago, had anyone asked me,
"Jim, what's the 14th Amendment?"
I would have had no idea.
My knowledge of the Constitution
was pretty common.
I could rattle off
some of the amendments, you know.
At least what they stood for,
not necessarily numbers.
But I really didn't know the Constitution.
And yet, that Amendment
underpins this decision.
[tense music plays]
[gavel bangs three times]
Chief Justice says Justice Kennedy
will read the first decision.
[man] Justice Kennedy has our opinion
in case 14-556, Obergefell versus Hodges.
I startled in my chair and I…
took my friend's hands
and thought, "Okay, here it comes."
"The nature of injustice is that we may
not always see it in our own times."
"The generations that wrote and ratified
the Bill of Rights and the 14th Amendment
did not presume to know
the extent of freedoms
in all of its dimensions,
and so they entrusted
to future generations
a charter
protecting the right of all persons
to enjoy liberty as we learn its meaning."
[gentle piano music]
[voice breaks] Everyone knew…
the significance…
of what was happening.
"No union is more profound than marriage,
for it embodies
the highest ideals of love,
fidelity, devotion, sacrifice and family."
"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 immutable nature dictates…
that same sex marriage
is their only real path
to this profound commitment."
"They ask for equal dignity
in the eyes of the law."
"The Constitution grants them that right."
I remember looking out
and seeing the faces of these people,
some of them openly weeping like children,
tears running down their cheeks.
No one's hard-edged
around something that profound.
It was one of the most amazing moments
I've ever seen.
I will tell my children,
I will tell my grandchildren
that I was there when the Court said,
"The door is open, you can walk through,
you are full members of society."
[emotional music playing]
[cheering and whistling]
[Obergefell] My first thought was,
"John, I miss you. I wish you were here."
"I wish you could know we won.
I wish you could experience this."
And that…
emotion, that feeling was quickly
followed by a surprising realization.
It was the first time in my life
as an out gay man…
that I felt like an equal American.
[cheering]
[reporter] Standby. We want to go back now
to the Supreme Court.
You see some of the interns
running out with the decision
[reporter 2] Here come our intern now
with the decision.
The Court has handed down its ruling.
Here it is.
This is what it says.
"The 14th Amendment requires a state
to license a marriage
between two people of the same sex
and to recognize a marriage
between two people of the same sex…"
[Obergefell] So I sat in that courtroom
between my friends
knowing that word has gotten out
to the crowd out front
and that there's a party going on,
people are celebrating
and all I can think is, "Come on,
wrap this up. I want to go." [laughs]
[cheering]
Al and I are arm in arm
and we're leading our group
and the crowd just split before us.
We would take a step
and it would split further,
and people were crying and cheering,
singing, celebrating.
[Gerhardstein]
You get out on the front steps
and you've got protesters on both sides,
you've got these amazing choirs singing
and, like, a totally discordant thing
'cause all the sound's happening at once
and all the media's crowding around him
and Jim's talking to 25 microphones.
I want to thank my legal team.
And especially Al Gerhardstein,
who stood by me
every single step of the way.
He gets a call from the President.
- Hi. Is this Jim?
- Yes, it is, Mr. President.
I just wanted to say congratulations.
And while he's talking to the President,
Vice President Biden goes to voicemail.
Not only have you been
a great example for people,
but you're also going to bring about
a lasting change in this country.
Yeah. Thank you.
I mean, it's just one of those moments
that you just can't do a do-over on that
and you don't want to.
[Obergefell] It was an amazing experience
to walk through the crowd
and to feel the love.
[chanting]
Love is love! Love is love!
The day ends in Cincinnati
with gay couples getting married
and the celebration is kicked off.
[man] And so, by the power
conferred by the Supreme Court
of the United States of America,
we rejoice today in the power of love.
You may seal your vows with a kiss.
[applause]
[Gerhardstein] And it continued
the next day with Gay Pride Day.
I mean, how many cases end
with a parade
through the center of the city
and everybody going absolutely nuts?
- [cheering]
- Happy Pride!
[Tootie] There were so many young people
lining those streets
and they were looking at Jim
and just quietly moving their lips,
"Thank you, thank you."
I'm talking about hundreds of faces
saying, "This is the way it should be."
[Obergefell] To go through this city
that had changed so drastically,
the most gay-unfriendly city
in the nation,
to this wonderful, welcoming place…
…I'll never forget that.
John would just… [laughs]
John would think this was
the most hilarious thing.
If you told him that his medical condition
somehow had led to a historic sea change
in the United States legal system,
he would probably give you that look.
[Tootie] You know, like,
"Let me tell you."
That kind of expression.
But I can see him saying,
"See, Aunt Tootie,
it really is all about love."
[laughs]
"That's what it's about."
You know, explaining it to me.
So, I think that's what he would say.
And I think he would be
just incredibly proud
that his marriage was part of it.
[hopeful instrumental music]
[Epps] It was yet another lesson
that conscientious attempts
to apply the Constitution's rules
to our national life
can produce extraordinary moments.
This is the heart of the 14th Amendment,
the original meaning of civil rights were
the rights that you must have as a person
in order to be fully present in society.
By recognizing this concept
of the basic civil rights,
the basic rights of humanity,
you know, we move forward over 150 years
and we're still figuring out
what that means.
So, the 14th Amendment,
while many years ago
I couldn't have told you
one thing about it,
now I know the 14th Amendment
and I understand how that amendment
is such an important tool
in ensuring that we are treated equally.
It helps move us towards
our American value of "We the People,"
and living up to those commitments
is one of the most meaningful things.
That's what drove me,
I had to live up to my promises to John.
I did this because I loved him and…
love wins.
It certainly did that day.
[upbeat music playing]
[narrator] Marriage equality shows
the 14th can be a beacon of inclusivity,
a bridge to an America that
honors the love we have for each other.
Thanks in part to 14,
the LGBTQ community has gone
from being seen as a feared other
to being treated as people,
as living, breathing human beings
who deserve equal rights.
And in the same way,
another group has been
struggling for America
to recognize their shared humanity.
They too want 14 to be a bridge
to the American Dream,
but instead, they've hit a wall.
[contemporary instrumental music plays]