Obergefell v. Hodges and the Legacy of AIDS
So, yeah… gay marriage is legal now.
It’s kind of a big deal.
That was about all I could offer in the immediate aftermath of the Obergefell v. Hodges decision, the landmark Supreme Court case that, on June 26 of this year, legalized same-sex marriage across the country. I’d been expecting the ruling for a long time, but when it came down, it was still, well, a lot. A couple weeks out now, my mood remains more contemplative than celebratory. Pretentious as it sounds — and it does indeed sound pretentious — the weight of history in the making feels heavy on my shoulders. I’m only now writing publicly on the topic because I’ve accepted that I just have to dive in, and hope for the best.
Conventional wisdom says “write what you know,” so I’m going to take this incredibly happy moment, and use it to talk about death. You’re welcome.
Morbid as it may sound, death belongs at the center of this — and many other — conversations about life. We understand ourselves by remembering, counting, displaying, honoring, and continuing the legacies of our dead. Equally important to constructing our identities are our attempts to forget, conceal, and abstract our dead. Death has the capacity to both form and threaten one’s understanding of their place and purpose in the world. It isn’t surprising, then, that its documentation has played a central role in this most recent victory for the LGBT community. Placed in its proper historical context, Obergefell v. Hodges demonstrates how the politics of death are helping change queer life in the United States.
The cultural production around this historical moment is only just beginning, and I for one look forward to its continued proliferation. I’ve already done my part by convincing my family to name our new kitten after Supreme Court Justice Anthony Kennedy, who authored the majority opinions in both Obergefell v. Hodges and U.S. v. Windsor.
Were the name easier to pronounce, I might have gone instead with the name of the lead plaintiff in the case: James Obergefell. His name will soon become synonymous with marriage equality in much the same way that Oliver Brown’s has become synonymous with desegregation. His narrative will be the one used to contextualize Kennedy’s opinion in the history textbooks of the future. (Well, at least some of the history textbooks of the future.)
Why James Obergefell? Actually, there’s no special reason, though the press coverage has certainly suggested otherwise. The Supreme Court always writes its legal citations using the suit with the lowest case number. While his selection was purely luck of the draw, the lead plaintiff’s story remains uniquely compelling, and his narrative uniquely associated with the #LoveWins ideal and the struggle for LGBT rights in America. His story also centers on death and its documentation.
In 2013, unable to wed in their home state of Ohio, James Obergefell and John Arthur, partners of over twenty years, married each other in Maryland. It wasn’t a flashy event: they said their vows in a medical transport plane, sitting on the tarmac at a Baltimore airport. A few months later, Arthur succumbed to ALS, a neurodegenerative disease that kills its sufferers in three to four years on average.
Because the state of Ohio did not recognize gay marriages performed in other states, Obergefell was not listed as the surviving spouse on Arthur’s death certificate. Though not a political person by nature, Obergefell could not abide the renunciation of his marriage by the state. Neither, it turns out, could the Supreme Court. As kitten-namesake Justice Anthony Kennedy so memorably put it in his opinion:[gblockquote]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.1[/gblockquote]
Though — for obvious reasons — the legalization of same-sex marriage is the first and most important legacy of Obergefell v. Hodges, the ruling also means that John Arthur’s death certificate will be (if it’s not already been) re-issued, this time acknowledging the existence of his surviving spouse. The Obergefell decision affirms that no state may put a same-sex union asunder, and, indeed, that the state has a responsibility to archive that love appropriately.
Same-sex marriage is a relatively new plank in the LGBT rights movement platform. The Gay Liberation Movement, as imagined in the 1970s (before queer identity, as we understand it today, was a thing) wasn’t about marriage at all. It was about pride, freedom of expression, and sexual liberation. It’s understandable, then, that many regard the changing priorities of the LGBT rights movement with a measure of scorn: why did such a radical movement become so interested in marriage, the very definition of a heteronormative institution? Why are we even talking about death certificates!?!
The answer, in a word, is “AIDS.” During the 1980s and 1990s, the LGBT community came face to face with not only death, but with sociocultural biases that rob death of dignity. Be it out of homophobia or fear, people with AIDS were routinely denied the right to a “good death.” Lovers and friends were barred from entering hospital rooms to comfort the dying. Bereaved partners lost their homes because they had no legal claim to the property. Some people dying of AIDS resorted to adopting their partners in the hopes that that would protect their inheritance. Many funeral homes wouldn’t accept the corpses of people who had died of AIDS, and entirely too many families wouldn’t claim them either. The dead were frequently disposed of in trash bags.
Marriage is indeed a conservative institution, but it is also one of the few that the law recognizes as inviolable. The quest for marriage equality was a direct effect of the losses the LGBT community experienced during the AIDS epidemic, and the myriad indignities suffered in the process. In this context we begin to truly understand the biopolitical significance of the death certificate, and why James Obergefell was willing to go all the way to the Supreme Court to get his name on a document that, in most households, is quickly relegated to the filing cabinet.
James Obergefell’s selection as lead plaintiff may not have been intentional, but boy does it make for a hell of a framing mechanism! In taking his suit to the Supreme Court, Obergefell didn’t just honor his husband’s memory and affirm their union; he also made explicit the central role death practices play in the construction and maintenance of the state, and the role the state plays in the construction and maintenance of personal identity. We exist in relation to the state just as we exist in relation to one another, for better or worse, in sickness and in health.
Renowned sociologist Zygmunt Bauman once wrote that “Culture is the sediment of the on-going attempt to make living with the awareness of mortality livable”.2 As we continue to celebrate marriage equality — with parades and Facebook posts, rainbow flags, long-overdue weddings, and kittens named JAKK — we should also celebrate John Arthur and James Obergefell, and the staggering numbers of American citizens who lived and lost before them. The social justice campaign they inspired means that mortality is a little less scary for a lot of people. Gay marriage is legal now. And that’s kind of a big deal.
Chauncey, George. Why Marriage: The History Shaping Today’s Debate Over Gay Equality. New York: Basic Books, 2005.
Faust, Drew Gilpin. This Republic of Suffering: Death and the American Civil War. Reprint edition. New York: Vintage, 2009.
Lost Bodies: Inhabiting the Borders of Life and Death. 1 edition. Ithaca, NY: Cornell University Press, 2006.
Troyer, John Erik. “Technologies of the HIV/AIDS Corpse.” Medical Anthropology 29, no. 2 (n.d.): 129–49.
Andrea Milne is a SAGES Teaching Fellow and Full-Time Lecturer in the Department of History at Case Western Reserve University. Her current research focuses on the nurses who developed the first AIDS ward in the United States. She received her PhD from the University of California, Irvine in 2017.