The Repeal of Roe v. Wade Is a Direct Threat to Gay Marriage
Jim Obergefell has been using the word “terrified” a lot recently. Two days after a leaked draft opinion revealed the Supreme Court is poised to overturn Roe v. Wade, Obergefell said it at least nine times during a single 45-minute phone conversation. He added that he’s also “overwhelmed, scared, and concerned about our nation and the rights that we enjoy.” And he should know: He was the lead plaintiff in Obergefell v. Hodges, the landmark 2015 ruling that enshrined the right to same-sex marriage in all 50 states.
Like many, Obergefell is worried about what the repeal of Roe would mean for the future of reproductive access in the United States. The pivotal 1973 ruling affirmed that pregnant people have the right to an abortion up to the point of fetal viability, and eroding those legal foundations could also imperil critical LGBTQ rights victories, including those Obergefell spent years of his life fighting for.
“I’m terrified and disgusted,” he told VICE. “I’m disgusted at the hate in this country for people who are different, for people of color, for the LGBTQ community. I am disillusioned, disheartened, and just sick of it.”
In the 98-page opinion published by Politico on Monday, Justice Samuel Alito takes specific aim at the Obergefell ruling. Alito, a George W. Bush appointee and one of the Supreme Court’s most right-leaning justices, claims that unenumerated rights not specifically outlined in the Constitution must be “deeply rooted in the nation’s history and traditions” to be upheld by the court.
Seemingly anticipating the blowback this precedent has the potential to set, Alito writes that the “decision concerns the constitutional right to abortion and no other right” and would, thus, not specifically pertain to marriage equality, Obergefell said he doesn’t buy it. In 2020, Alito and fellow Supreme Court conservative Clarence Thomas signed on to an opinion referring to the 5–4 ruling on same-sex marriage as placing a “a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment” and claiming it would “continue to have ruinous consequences for religious liberty.”
When taken together, Obergefell said that Alito’s statements make the marriage equality ruling “incredibly vulnerable” to a legal challenge. “I think this decision is a clear continuation of Supreme Court justices letting opponents of LGBTQ equality know that they have friends on the court,” he said.
Alito’s opinion is only a draft and is not yet the law of the land, but Politico reports that the Supreme Court’s conservative wing has the five votes necessary to roll back Roe.
LGBTQ advocates are unsure of the direct impact that a final verdict, which is due in June or July, will have on watershed decisions like the Obergefell ruling. The case was decided on both the right to privacy established by Roe, but also the Equal Protection Clause of the 14th Amendment, which states that the U.S. government cannot apply the same laws differently to different classes of people.
But one ruling many believe could be particularly vulnerable is Lawrence v. Texas, the 2003 decision decriminalizing gay sex in all 50 states. As the abortion-rights research organization Guttmatcher Institute stated in a brief published the same year, the Supreme Court’s 6–3 decision in Lawrence built on the “expansive notion of liberty” expressed in both Roe and 1992’s Planned Parenthood v. Casey. Around a dozen states still have sodomy bans on the books, and these laws could immediately go into effect were the Supreme Court to decide that Lawrence is no longer constitutionally valid.
Having fought these battles for so long, Obergefell knows how fragile LGBTQ rights are. Even seven years after his namesake ruling, he asserted that same-sex couples still do not enjoy true equality. At least 12 states allow adoption and foster care agencies to turn away prospective same-sex parents on the basis of religion, according the LGBTQ think tank Movement Advancement Project. Last month, a gay couple sued the City of New York for denying them in-vitro fertilization benefits in its insurance plan.
“I think this decision is a clear continuation of Supreme Court justices letting opponents of LGBTQ equality know that they have friends on the court,” Obergefell said.
“We have the right to get married, but marriage equality would mean that we could enter into marriage without impediment and actually celebrate that occasion without discrimination,” Obergefell said. “We can’t do that. We haven’t been able to do that since June 26, 2015.”
Obergefell hopes to continue playing a role in protecting same-sex marriage as an elected representative in his home state of Ohio. In January, he announced that he’s running for a seat in the Ohio House of Representatives, where he would be the only openly LGBTQ lawmaker seated in the legislature’s lower chambers. Obergefell is currently running unopposed in the Democratic primaries for District 89 and will face off in the November general election against GOP incumbent D.J. Swearingen, who has held the seat since 2019.
The race could be a tough one for Obergefell, as Swearingen defeated his Democratic challenger by more than 15 points in the previous election. District 89, which comprises portions of the greater Sandusky area in northern Ohio, is heavily conservative. The county went for Donald Trump by nearly 10 points in 2016 and an even greater 27-point margin in 2020.
Despite the obstacles, Obergefell said that he’s running because he’s aware of the stakes. At least 13 states never repealed their statutory same-sex marriage bans in the wake of the marriage equality ruling, and Ohio is one of them. Were the decision to be overturned by the Supreme Court, he is “terrified”—yes, there’s that word again—that the marriage he fought so hard to get legally recognized could be effectively erased by his own state.
“I don’t think it’s possible to understate how important it is right now for our community to have state legislative members everywhere,” he said. “If the Supreme Court takes away marriage equality, then it’s going to be up to the states. We should not be having this fight. My marriage to John harmed nobody—not one single person. Nobody’s religious beliefs were harmed by our marriage.”
It’s still difficult for Obergefell to talk about his marriage to John Arthur, his partner of 21 years. Arthur passed away from amyotrophic lateral sclerosis (ALS) in 2014, and despite the fact that Ohio didn’t recognize same-sex unions at the time, the two chartered a medical jet to get married on the tarmac of a Maryland airport just weeks before Arthur died. He said the ceremony was “incredibly uncomfortable” for his husband, whose head had to be propped up in a gurney, but Obergefell still remembered it as the happiest day of his life.
People often asked Obergefell why getting married was so important to the couple if they’d already been together for such a long time. He said the reason is because being able to say “I do” in that cramped plane “changed everything” for them: It was validation that “we existed and we mattered,” he said. He asserted that he will do whatever it takes to preserve that right, no matter what may happen in future Supreme Court rulings.
“Being able to make those promises to love, honor, and protect, what a joy that was,” he said. “By continuing this fight, that’s what I’m doing. I’m continuing to live up to my promises to John to love, honor, and protect him.”
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