Abortion rights might soon be gone. Activists worry same-sex marriage is next

Mary Louise Kelly, Michael Levitt, Courtney Dorning | NPR

June 2nd, 2022

Jim Obergefell, the named plaintiff in the Obergefell v. Hodges Supreme Court case, stands on the step of the Texas Capitol during a rally Monday, June 29, 2015. (Eric Gay/AP)
Eric Gay / Eric Gay

On June 26th, 2015, the Supreme Court ruled that same-sex couples have a constitutional right to marriage. It was a historic ruling that signified a turning point for LGBTQ+ rights in the United States.

Fast-forward seven years, and a lot has changed. The Supreme Court is vastly different, and another landmark decision is pending, this time pertaining to the federal right to an abortion.

A leaked draft opinion suggests the court is ready to overturn Roe v. Wade, which could have implications for other rights, including the right to same-sex marriage.

Civil rights activist Jim Obergefell was the lead plaintiff in the 2015 case, and he joined “All Things Considered” to share his perspective on the uncertain future, and how his case is more closely tied to Roe v. Wade than you might think.

This interview has been edited for brevity and clarity.

On the story behind his original lawsuit:

“On June 26 2013, the Supreme Court struck down the Defense of Marriage Act in their decision in The United States v. Windsor. I proposed to my partner John, and he was dying of ALS. We were in our twentieth year together as a couple. We ended up marrying inside a medical jet in Maryland, and we lived in Ohio. When we learned that John’s death certificate would be filled out incorrectly when he died, saying he was single, we decided to sue the state of Ohio and the city of Cincinnati to demand recognition of our lawful out-of-state marriage on John’s death certificate at the time he died. That’s the case that took me all the way to the Supreme Court.

His initial reaction to the leaked draft opinion on Roe v. Wade:

“Well, my immediate reaction was, what a dark day for people in our nation and their privacy, and the right to control their body and to make their medical decisions in the absence of government influence or interference. So that was my first reaction. But then, reading the draft, in more detail, to see some of the justification, some of the rationale in that decision that Justice Alito is using, just honestly scares me for marriage equality. It scares me for same-sex intimacy; will we lose the ability for that not to be criminalized? There are things in this leaked decision that concern me about so many things that relate to the LGBTQ+ community, as well as interracial marriage and more.”

On the link between the ruling on abortion and the future of same-sex marriage:

“My concern in this leaked decision, and why I’m worried about marriage equality is the language in this decision, which says ‘unenumerated rights’. [These are] the rights that we enjoy as Americans that are not specifically written out word for word in the Constitution, the right to privacy, the right to marry. This leaked decision says, ‘well, if those unenumerated rights will continue as what we consider fundamental rights, then they have to be based in our nation’s history and tradition.’ That’s a very dangerous thing, because marriage equality is only seven years old, not even seven years old. That is not a long history. It’s certainly not the tradition of our nation. So, that language, talking about unenumerated rights being based in history and tradition, that concerns me.”

On the reaction within the LGBTQ+ community:

“There is definitely widespread fear. But it’s also one of those things where I consider my job right now to help educate people, to help them understand why they should be concerned, why they should be afraid, and why they shouldn’t just think, ‘well, that that really isn’t going to happen.’ It could happen, and people need to believe that it could happen. So, there’s fear, but people are also thinking, ‘Well, what can we do?’ And what we can do is get involved at the state level. We’re really going to have to rely on states to confirm and to protect, to affirm some of these rights that are at risk with the Supreme Court. I think most of us, a lot of us in the community, we’re looking at this from the state level, realizing just how important that it always has been, and how important that will be, or could be going forward.”