As It Happens

His case made same-sex marriage a right in the U.S. Now he fears it could all be undone

Now that the U.S. Supreme Court has struck down the constitutional right to an abortion, Jim Obergefell worries that same-sex marriage could be next — and he’s not alone.

Fall of Roe v. Wade puts marriage equality, contraception and LGBTQ rights at risk, says Jim Obergefell

A bald man with glasses and a colourful bowtie is pictured mid-sentence standing at a podium as an American flag waves behind him.
Jim Obergefell, pictured here at the Utah State Capitol on June 7, says he's worried about the fate of same-sex marriage in the United States. (Rick Bowmer/The Associated Press)

Story Transcript

Now that the U.S. Supreme Court has struck down the constitutional right to an abortion, Jim Obergefell worries that same-sex marriage could be next — and he's not alone.

Obergefell was the lead plaintiff in Obergefell v. Hodges, the landmark 2015 Supreme Court case that established same-sex marriage as a constitutional right in the U.S. 

But with the fall of Roe v. Wade, advocates and legal experts say other established rights in the U.S. could end up on the chopping block, including same-sex marriage, same-sex sexual relations and access to birth control.

"It just has me concerned that marriage and LGBTQ rights in general are at risk, much like we're seeing the rights of pregnant people and women are being taken away," Obergefell told As It Happens guest host Ginella Massa.

Obergefell is currently running as a Democrat for the Ohio State House of Representatives.

What does abortion have to do with marriage equality?

In 1973, Roe v. Wade established abortion as a constitutional right in the U.S. In striking it down last week, the court noted that the U.S. Constitution, as it was written, confers no such right, and that the right to abortion "is not deeply rooted in the Nation's history and tradition."

That line of reasoning has civil rights advocates and legal scholars worried about other rights that have been established in recent decades, but which were never explicitly mentioned by the Founding Fathers.

Supreme Court Justice Samuel Alito tried to assuage those concerns. In the court's majority opinion overturning Roe, he wrote: "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

But those words do little to reassure Obergefell and others. 

"I don't buy that at all," Lawrence Gostin, a professor of medicine at Georgetown University and faculty director of its Institute for National and Global Health Law, told The Associated Press. "It really is much more extreme than the justices are making it out to be."

Jason Pierceson, a University of Illinois political scientist, agreed that it's unlikely the conservative-majority court will stop with abortion.

"They are sending signals to the conservative legal movement, which has a lot of momentum right now because of this victory, to keep going and to keep bringing cases to them over the next several years that will give them opportunities to go further," he said.

Dozens of people march through the streets carrying rainbow flags and signs that read 'Protest safe, legal abortion' and 'I stand with Planned Parenthood.'
Members and supporters of Planned Parenthood lead the 2022 Pride parade in New York City. (Brendan McDermid/Reuters)

Critics of the ruling point to separate concurring opinion by Justice Clarence Thomas, who said court should review other precedents, including the Obergefell case, a 2003 decision striking down laws criminalizing gay sex and a 1965 decision declaring that married couples have a right to use contraception.

"That's a terrifying thing to read from a Supreme Court justice," Obergefell said.

"It makes me angry that there are still people in this nation, including a Supreme Court justice, who are vehemently opposed to LGBTQ equality and our right to commit legally and publicly to the person we love the most, and our right to form a family, and to have those relationships and those families protected and respected by our government."

Listen: How the fall of Roe could impact other rights in the U.S.:

In fact, advocates say attacks on LGBTQ rights and contraception have already begun. There's been a sharp uptick of anti-LGBTQ rhetoric and legislation in the U.S., including Florida's so-called Don't Say Gay law, or the dozens of Republican state bills targeting transgender youth.

What's more, lawmakers in Idaho and Missouri last year discussed banning state funding for emergency contraception, and Idaho prevents public schools or universities from dispersing it.

"It's all interconnected, because at its base, birth control and abortion are both types of health care that help people have bodily autonomy," Mara Gandal-Powers, director of birth control access for the National Women's Law Center, which supports abortion rights, told The Associated Press. 

A life-changing experience in pursuit of 'vital' rights

As he watches the news unfold, Obergefell says he just doesn't understand "why people can't just be decent and accept the fact that there are people who differ and we all deserve the same human and civil rights."

For him, those rights are deeply personal. He spent years in and out of court, fighting to have his marriage — and those of same-sex couples across the country — recognized and protected. 

It was a journey he started alongside his late husband, John Arthur. The couple were legally wed in Maryland in 2013, but their home state of Ohio refused to recognize the marriage. At the time, Arthur was fatally ill with ALS, and the state would not list Obergefell as his surviving spouse on his death certificate.

Arthur died later that year, and Obergefell dedicated himself full-time to fighting for marriage equality, culminating in his 2015 Supreme Court victory.

A balding, gray-haired man in glasses stands at a podium in front of a crowd outside the U.S. Supreme Court holding up a photograph of a man.
Obergefell holds a photo of his late husband John Arthur as he speaks to members of the media after the U.S. Supreme Court handed down a ruling regarding same-sex marriage on June 26, 2015. (Alex Wong/Getty Images)

"To be able to use the word 'husband' and have it mean something legal was so vital to us, especially as John's life was coming to an end. And I have to tell you, we used that word hundreds of times a day in the most innocuous ways. Most sentences that came out of our mouth included the word husband, because it felt wonderful to see it and to know it meant something," Obergefell said.

"And for me to be able to call myself John's widower and know that that means something legal, but also it means something personal."

It goes beyond the personal, too.

"Being part of something that actually made a difference and made the world a better place, that had such an important and positive impact on people across our nation and especially the younger generations, it changed me," he said. "I have to keep fighting to do the right thing. I have to keep fighting to make things better."

That's why, he says, he's running for office. 

"When it comes to rights like marriage, we have to rely on and demand of our state legislatures that they act to protect these rights that we have enjoyed, we have relied on, and that, unfortunately for pregnant people, that they have now lost," he said.

"We have to look to state legislatures to protect that if the United States Congress will not."

Written by Sheena Goodyear with files from The Associated Press. Interview with Jim Obergefell produced by Chris Trowbridge.

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