Alphonse A. Gerhardstein

The wedding news caught Al Gerhardstein’s attention. John Arthur and James Obergefell had flown from Cincinnati to Maryland to marry, a journey made possible by a medical aircraft that friends and family helped finance. Gerhardstein, a Cincinnati civil rights lawyer, recognized a problem waiting for them at home. Ohio would treat Arthur as unmarried when he died and leave Obergefell out of the space for his surviving spouse.

The couple had been together for more than twenty years. Arthur had amyotrophic lateral sclerosis and was receiving hospice care. On July 11, 2013, they married inside the aircraft on the tarmac in Anne Arundel County and returned to Ohio the same day. Maryland recognized their marriage; Ohio’s statutes and constitution denied it legal force.

Gerhardstein filed their federal lawsuit on July 19. It identified the threatened entries precisely. “Marital status at time of death” would read “unmarried.” “Surviving spouse” would be blank. Among the defendants was Cincinnati’s local registrar, responsible for accepting death certificates and ensuring the accuracy of the personal information entered into Ohio’s records. The requested order would reach the official who had to accept Arthur’s certificate.

Three Days to an Order

Judge Timothy Black granted emergency relief on July 22. Arthur was expected to die soon; the certificate would be created at his death and put to use immediately. Gerhardstein and his colleagues had to address the four factors the court weighed: likelihood of success on the constitutional claim, irreparable harm without an injunction, harm to others, and the public interest.

Ohio’s own treatment of marriages performed elsewhere supplied a comparison. The State recognized certain marriages between first cousins and some involving minors when they were valid where celebrated, although Ohio would not permit those weddings itself. Its refusal to recognize a lawful same-sex marriage singled out Arthur and Obergefell for different treatment.

The couple also had burial arrangements to protect. Arthur wanted to be buried in his family plot and to have Obergefell beside him someday. The plot was reserved for descendants and married spouses. A death record that denied their marriage could obstruct those wishes or delay Arthur’s burial.

Black’s order applied to the two plaintiffs. It barred the registrar from accepting a certificate that failed to identify Arthur as married and Obergefell as his surviving spouse. No bond was required. The initial order would expire on August 5 unless extended, giving the couple immediate protection while the litigation continued.

A Second Husband, a Second Emergency

On August 27, William Ives died unexpectedly. He and David Michener had married in Delaware; now his cremation awaited a death certificate. Michener joined the pending action, and on September 3 the court issued a second temporary order requiring recognition of their marriage on the record.

For Gerhardstein’s team, preparation for Arthur’s approaching death made a response to Ives’s sudden death possible. Black later described the difference: Arthur and Obergefell had time to anticipate the problem, while Michener could obtain help quickly because lawyers had already prepared the issue and a live case with an existing restraining order was available to him.

The lawyers added Cincinnati funeral director Robert Grunn as a plaintiff on September 26. His work would bring him more couples facing the same problem. By including him, they sought protection that could remain available after the deaths at the center of the original claims.

Arthur died on October 22. His certificate recorded the marriage and named Obergefell, as the court had ordered. Ohio then sought dismissal, arguing that the deaths of Arthur and Ives left no live controversy and that Grunn could not pursue the claims. The plaintiffs still needed permanent protection for the certificates already issued and a way to protect the couples who would next require them.

The Funeral Director’s Signature

Grunn gathered personal information from next of kin, including marital status and the surviving spouse’s name. He entered it into Ohio’s Electronic Death Registration System, signed the certificate, and submitted it for registration. His clients could neither enter that system themselves nor exercise the statutory authority to register a death.

Families used the certified copies to claim life-insurance payments and Social Security survivor benefits, administer wills and estates, and transfer automobile titles, real property, and other assets. Grief and inexperience often meant they learned how much the certificate mattered only after Grunn returned the copies to them.

Grunn intended to identify future clients’ lawful same-sex marriages accurately. Yet a purposely false entry could expose a funeral director to criminal penalties, and Ohio had not disavowed enforcing that law against him if he named a same-sex spouse. The man responsible for signing the record faced a threat of prosecution for recording the marriage his clients had legally entered.

Black allowed Grunn to pursue the rights of his clients and future clients. His fear of prosecution was concrete, his professional relationship with those couples was close, and their dependence on him—combined with the urgency surrounding a death—hindered their ability to bring their own lawsuits. These circumstances gave him standing to challenge the rules on their behalf. Another bereaved spouse would not have to assemble a new emergency case before the court could address the recurring injury.

The Permanent Order

On December 23, 2013, Black entered a declaratory judgment and permanent injunction. The relief was confined to marriage recognition on death certificates for the plaintiffs and the same-sex married clients Grunn served. This was an as-applied ruling, addressing those circumstances; it did not require nationwide marriage licensing or invalidate every application of Ohio’s marriage provisions.

The covered records had to identify the decedent as married or widowed and name the surviving spouse. Permanent relief also secured the certificates already issued: without it, Arthur’s record remained subject to amendment that would remove Obergefell and their marriage.

The judgment protected Grunn’s work. Officials could not initiate criminal prosecution or administrative discipline against him for accurately recording a lawful same-sex marriage and surviving spouse on a death certificate he completed as a funeral director.

Ohio’s health director was ordered to make a best-faith effort to notify everyone in the State who assisted with completing death certificates. By March 31, 2014, he had to file an affidavit documenting compliance.

Gerhardstein led the representation of Arthur, Obergefell, Michener, and Grunn. Jacklyn Gonzales Martin and the firm’s other lawyers, clerks, paralegals, graduates, and staff worked with him.

Two Questions Before the Supreme Court

The Sixth Circuit consolidated six marriage cases from Michigan, Kentucky, Ohio, and Tennessee. Gerhardstein argued for the Ohio plaintiffs in the Obergefell and Henry appeals, presenting the death-certificate case alongside separate litigation over birth certificates. Across the four States, couples challenged denied licenses, unrecognized marriages, and records that failed to acknowledge spouses or children’s parents.

Gerhardstein then served as counsel of record for Obergefell and the Ohio petitioners in the Supreme Court, asking it to review the refusal to recognize their marriages. On January 16, 2015, the Court granted review of two questions: whether States must license same-sex marriages and whether they must recognize lawful same-sex marriages performed elsewhere.

The legal teams divided the oral argument by question. Mary Bonauto presented the petitioners’ licensing case, with Solicitor General Donald Verrilli appearing for the United States. Douglas Hallward-Driemeier argued recognition. Gerhardstein’s responsibility remained the Ohio petitioners’ case as counsel of record, following his work on the emergency filing, district-court relief, and Sixth Circuit argument. The consolidated effort brought together the facts, claims, briefs, and advocates supplied by couples and lawyers from all four States.

On June 26, 2015, the Supreme Court answered both questions in the couples’ favor, five votes to four. The Fourteenth Amendment required every State to license marriages between two people of the same sex and to recognize lawful same-sex marriages performed in another State.

Justice Anthony Kennedy organized the opinion around four principles: personal choice, the intimate union of two people, protection of children and families, and marriage’s place in the legal and social order. The rights and responsibilities attached to marriage included survivor interests and birth and death certificates. Equal recognition reached the state systems that distributed those consequences.

Kennedy returned to Arthur and Obergefell’s circumstances. Ohio’s rule would have left them legal strangers at death, imposing a separation in the permanent record after more than two decades together. Their request to have Obergefell named as the surviving spouse was now part of the Court’s explanation of the constitutional right.

The Names on the Certificate

In 2017, Pavan v. Smith applied Obergefell to birth certificates in Arkansas. The State generally listed a married birth mother’s husband even when a child was conceived with an anonymous sperm donor. Yet it omitted the female spouses of women who gave birth and defended the certificate as a record of biological parentage.

The Supreme Court summarily reversed the state court’s judgment. Arkansas already used birth certificates to recognize married parents whose relationship to a child was not genetic. Under Obergefell, it had to extend that marital recognition to same-sex couples on equal terms.

Looking back in 2020, Obergefell recalled hearing the decision that June morning five years earlier. In the courtroom, his first thought had been of Arthur: “John, I wish you were here.”

He described walking onto the Supreme Court plaza arm in arm with Gerhardstein. Other plaintiffs and lawyers followed. The crowd recognized them, opened a path, and greeted them with cheers, tears, and high fives.