Jim Obergefell, in whose name marriage equality became the law of the land in 2015 after he successfully presented his case to the Supreme Court, believes it is now “in danger” with the likely appointment to the court of conservative judge Amy Coney Barrett.
Obergefell, 54, told The Daily Beast he has been dealing “with the feeling of devastation” over the death of Justice Ruth Bader Ginsburg. Now Judge Barrett’s nomination has brought an “overwhelming fear about LGBTQ+ rights and women’s rights and so many things,” he said. “I feel what I, and the many other marriage equality plaintiffs fought for, is at more risk than ever before.”
Obergefell didn’t feel the same level of concern over the safety of marriage equality under the law when Justice Antonin Scalia died in 2016, as he felt Chief Justice John Roberts “put so much weight on precedents, and so I thought would have been on the side of keeping marriage equality. But if Judge Barrett is appointed, it’s a potential 6-3 split in favor of conservatives. I’m concerned, I really am. I hate to say it, I really do, but I believe marriage equality is in danger. It makes me sick to my stomach.”
Obergefell is far from alone in his concern, which is echoed by LGBTQ groups and campaigners. The Human Rights Campaign (HRC) has called Judge Barrett an “absolute threat to LGBTQ rights,” pointing to her questioning the role of the Supreme Court in ruling on marriage equality, and her opinion that the text of Title IX does not extend to explicitly protect transgender students. At a 2016 lecture Judge Barrett referred to transgender women as “physiological males.”
“If Amy Coney Barrett is… confirmed, she is not going to uphold Justice Ginsburg's legacy,” HRC president Alphonso David said in a tweet. “She’s going to do her best to dismantle it. The American people should have a say in this appointment. We oppose her nomination & this sham process.”
Obergefell, who lives in Columbus, Ohio, said President Trump’s appointment of more than 200 judges in lower courts made marriage equality legislation even more vulnerable to challenge at the Supreme Court.
“That’s what makes me scared. If there’s a case that gets in front of the right judge who is opposed to marriage equality, they could rule in favor of it. Before now, I had confidence the Supreme Court would have said, ‘This is precedent, marriage equality is the law of the land.’ I thought the highest court in the land had ruled we have marriage, that it was not going anywhere. I don’t have that confidence now. I am extremely concerned that we could have marriage equality overturned. I have to be realistic. It’s a scary time to be a member of the LGBTQ+ community, indeed any member of a marginalized community. I’m worried about equality for every group who has gone before the court in order just to be treated like everyone else.”
Obergefell said he was not upset for himself but about “the harm it will do people across our nation” if marriage equality is revoked. In the seven years since he started fighting the case, he has been hugely affected by the interactions he has had with same-sex couples who tell him what the victory has meant to them; the young people “who hug me and thank me for giving them the hope they will be able to marry the person they love,” and the parents who thank him for making it possible for their children to marry who they love.
“That’s what breaks my heart and makes me sick to the stomach,” said Obergefell, “to think of all those people who found a sense of hope and sense of belonging in our nation, and to have that ripped away and suddenly facing going back to second-class status. We all want to spend our lives with someone we love, and to suddenly have that taken away is devastating. It makes me incredibly sad for our nation.”
Obergefell and partner John Arthur married in 2013 in Baltimore, as same-sex marriage was then illegal in their home state of Ohio. Arthur, who suffered from ALS, died later that year. Arthur is never far from Obergefell’s mind. Judge Barrett’s nomination, and the danger marriage equality is now in, has brought him even more to mind. “I think John would be really disappointed in our nation,” said Obergefell.
Obergefell has felt “a creeping sense of dread and fear” as the Trump administration has attacked LGBTQ people, particularly trans people. “Justice Ginsburg’s death and now this nomination has kicked that feeling of dread into a more distinct feeling of fear.”
More recently than marriage equality, in June SCOTUS ruled that Title VII of the 1964 Civil Rights Act does protect LGBTQ people from discrimination. Companies cannot now fire people on the basis of their sexual orientation or gender identity.
The marriage equality case started off in 2013 “as a personal thing,” said Obergefell. “John was dying of ALS, the Edie Windsor decision had happened [striking down the Defense of Marriage Act in 2013]. I proposed, we got married. At that point, my life consisted of four walls. John was confined to bed. We started this fight because we simply wanted to feel like we existed and mattered.” After Arthur died and Obergefell secured his first victory in federal court, “it suddenly become very clear to me what our fight meant to so many others. It started becoming this bigger fight.”
After the victory at the Supreme Court, Obergefell—memorably congratulated live on CNN by then-President Barack Obama—wished Arthur had been alive to see “we were husbands for good and that no one can change that. No one can disrespect that. That was such a beautiful thing to realize. I never thought it would happen. I felt very fortunate. It’s hard to describe how momentous and meaningful it was, but it was all because I loved John and I wanted to live up to my promises to love, honor, and protect him. I was willing to do anything to do that, including going to the highest court.”
“It’s infuriating. It disgusts me that there are people in this nation who want nothing more than to drag us backwards.”
The prospect of marriage equality being lost is “terrifying” to Obergefell. It also makes him angry.
“I want to say to people, how would they feel if their government suddenly said, ‘Your relationship, your marriage, the person you care most about in the whole world, suddenly means nothing—actually it means less than nothing, and we are going to disregard it and disrespect it in every way.’ It’s infuriating. It disgusts me that there are people in this nation who want nothing more than to drag us backwards. There are people in this country who do not believe in ‘We the People.’ They don’t believe in equal justice under the law. They only believe in it if it benefits them, not if it benefits anyone else—and I just find that thoroughly disheartening. It’s a slap in the face for our country’s founders and Constitution.”
The behavior of Trump and Republicans pushing Judge Barrett’s nomination forward so fast after Justice Ginsburg’s death has been “offensive,” said Obergefell. “They didn’t even give her the dignity of letting 24 hours—let alone a little bit longer—pass until they turned this into a political play. And then you add their hypocrisy to it, after they obstructed Judge Merrick Garland’s nomination under President Obama.
“I look at the GOP, and think power and party are so much more important to them than the oath they took for office. Power and party to them seem much more important than our Constitution and our nation. I find it disgusting and reprehensible.”
To Trump, Judge Barrett, and the Supreme Court, Obergefell would say that the Constitution is a “living, breathing document” that they know would change as society changed. “I would also ask, ‘What harm does my marriage, or any same-sex marriage, do? None whatsoever. We’re simply asking to enjoy the same rights, protections, and responsibilities as any other American, as promised to us in the Constitution.”
In the years since 2015, Obergefell has continued his activism through public speaking, his advocacy with Family Equality, and charitable donations from Equality Vines, the wine label he co-founded in Guerneville, Sonoma County, in California.
Judge Barrett’s nomination, and the threat now posed to marriage equality, means Obergefell feels he has an even greater responsibility to speak up. “I have to do all I can to make sure we don’t lose that vital right to say ‘I do,’ and actually have it mean something.”
Obergefell also had some happier news to share. He revealed he had just started seeing a new partner. Introduced by a mutual friend, they spent months corresponding virtually and just met this week for the first time face-to-face in San Francisco, where his partner lives.
“It’s been great,” said Obergefell. “Our friend’s first thought was that we had to meet, and I have to say she wasn’t wrong. In a positive way, the pandemic took away some of the anxiety of meeting in person. We got to know each other really well by email, phone, and then FaceTime. When we met for the first time, it didn’t feel like that.”
To LGBTQ people feeling as alarmed by Judge Barrett’s likely appointment as he does, Obergefell said he also has felt “terrified and hopeless at times recently. But I would say: ‘Don’t lose hope. Don’t give up the fight.’ Even though at a federal level, things are looking scary, there’s still an awful lot we can do at the local, state, and city level.”
Obergefell paused. “I would also say we owe it to Justice Ginsburg to keep fighting. She was our advocate. She was our ally. She was so important to our community and other marginalized communities that we can’t let her down. She worked long into her life, long past when others would retire. She did that for us. So no matter how disheartened, terrified, and afraid we are, we have to keep fighting because we owe it to Ruth.”