Washington Jim Obergefell, the gay rights activist and named plaintiff in the 2015 Supreme Court case that legalized same-sex marriage nationwide, argued Wednesday that a constitutional right to marriage equality is at risk if the high court decides to overturn Roe v. Wade.
Earlier this week, a leaked draft opinion authored by conservative Justice Samuel Alito showed that the court was poised to overturn Roe, the landmark 1973 case that protects abortion rights nationwide, in a case concerning a strict Mississippi abortion law. Though Alito tries to make clear his opinion should not necessarily impact other cases, including Obergefell v. Hodges, Obergefell and legal experts say it could have that very impact.
“This decision, and what Alito has to say about marriage equality, is a clear call to anyone who opposes marriage equality, who opposes LGBTQ+ equality, that they have a friend on the court. More than one friend. And that they should be happy or they should be willing to come after marriage equality,” Obergefell told CNN’s Bianna Golodryga on “At This Hour.”
Critics of Alito’s draft decision believe that if the opinion is ultimately rendered, it will represent an opening salvo in a push to target other rights grounded in privacy and liberty. Critics also believe it would destabilize the law by rendering the legal doctrine of stare decisis — the notion that courts should follow their precedents even if they disagree with them, to protect the cohesion of the law — a dead letter.
Pressed on whether he believes Alito’s caveat that the potential Roe reversal should not impact decisions like the one in his case, Obergefell said: “No, I do not. And, in fact, if you look back at the confirmation hearings for a minute, many of these justices for the highest court in the land, they all said that they considered Roe v. Wade, a woman’s right to abortion, settled law. And yet, here we are.”
“So those assurances, unfortunately, they fall on deaf ears,” he added. “It doesn’t make me feel comfortable. It doesn’t make me feel safe. In fact, it terrifies me.”
The court’s majority opinion in Obergefell was authored by then-Justice Anthony Kennedy, who was succeeded by Justice Brett Kavanaugh, one of the justices who appears to be voting in favor of Alito’s Roe reversal. Alito penned his own dissent in the Obergefell case.
“The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term ‘liberty’ in the Due Process Clause of the Fourteenth Amendment encompasses this right,” he said in dissent in language similar to his draft majority opinion on Roe.
Obergefell married John Arthur in 2013, months before Arthur died. The Ohio couple had to travel to Maryland aboard a medical jet to get married when Arthur became gravely ill. When Arthur died, Obergefell sued to be recognized as Arthur’s spouse on his death certificate.
Earlier this year, Obergefell, a Democrat, announced a bid for Ohio’s 89th House District, which includes Erie and Ottawa counties. He said on Wednesday that he plans to zero in on the issue of Supreme Court precedent in matters like marriage equality as he campaigns for the seat.
“There are so many rights we value as Americans that, in my opinion, are now at risk,” he said. “So will I be speaking up and campaigning on the threats to our liberties as Americans? You better believe it. I will.”
