The Fight for Marriage Equality: From Birth to Death and Every Moment in Between
After 22 years together, Jim Obergefell and John Arthur faced the devastating reality that John would not survive another year. John had been diagnosed with amyotrophic lateral sclerosis (ALS) in 2011, a condition for which there is no cure.
By June of 2013, when the Supreme Court struck down the Defense of Marriage Act (DOMA) in United States v. Windsor, the couple knew their days together would be measured in weeks, not months or years. With the help of family, friends, and a team of doctors, they to Maryland and married on the tarmac of an airport there.
But when they returned home to Ohio – the state that they had called home for decades, where they built a life together and where they prepared to say goodbye to each other – their marriage was not recognized. They faced the cruel reality that when John died, his death certificate would list him as single and a blank space would follow on the line for surviving spouse. The love and legacy he shared with Jim would be noticeably empty from the last official document of his life.
Unable to fathom such a fate, the couple sued the state of Ohio.
In December of 2013, the district court ruled in favor of Jim and John, striking down Ohio's marriage bans as they applied to the recognition of out-of-state marriages on death certificates. The ruling left John's death certificate, which listed him as married and Jim as his spouse pursuant to an earlier order of the court, undisturbed. But the state of Ohio appealed, and now if that decision is overturned, John's death certificate could be amended to remove all mention of Jim and John's 22-year relationship.
The 6th Circuit Court of Appeals, which covers the states of Ohio, Kentucky, Tennessee, and Michigan, will hear argument today in Jim and John's case as well as five other cases challenging state laws that bar the recognition of marriages between same-sex couples and the freedom to marry for same-sex couples.
In the year between when many of these cases were filed and today's oral argument, some plaintiffs like Jim Obergefell have lost the love of their life while others have welcomed a child into the world. For each couple the most joyous and the most tragic of life's moments have been complicated by their home state's refusal to treat them as married or to prevent them from being married in the first instance.
Today, Jim and the plaintiffs in five other cases are calling on the 6th Circuit to affirm six district court decisions all ruling in favor of marriage or marriage recognition for same-sex couples in Ohio, Tennessee, Kentucky and Michigan.
These cases will be the third set of cases to be heard by a federal court of appeals after a string of 21 district court decisions, which all ruled in favor of marriage equality since the Supreme Court's decision in Windsor. The two other courts of appeals, the 10th Circuit and the 4th Circuit, have already upheld district court decisions on the side of marriage. We hope that the 6th Circuit will be next.
The ACLU continues to work to strengthen the unbroken line of post-Windsor decisions that has created a judicial consensus that bans on the freedom to marry and marriage recognition for same-sex couples are unconstitutional. One or more of these cases will soon be before the Supreme Court and we are optimistic that the Supreme Court will also conclude that our Constitution simply does not tolerate the discrimination that these marriage bans reflect.
With any luck that day will come soon so that Jim, the other plaintiff couples, and same-sex couples across the country will be able to navigate life's challenges and celebrations without having to worry about whether they will be treated as strangers in the eyes of the law.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.