Jim Obergefell, the lead plaintiff in the landmark 2015 Supreme Court decision Obergefell v. Hodges which overturned bans on same-sex marriage nationwide, has spoken out after two Supreme Court justices argued for the court’s marriage equality decision to be reversed.
Obergefell said that a dissent penned by Supreme Court Justice Clarence Thomas, and joined by Justice Samuel Alito, is the “canary in the coal mine” for the fate of LGBTQ rights under a conservative 6-3 Supreme Court.
Thomas and Alito recently sided with their fellow court colleagues in rejecting a petition from former Kentucky Clerk Kim Davis regarding a lawsuit brought against her by four couples — two of whom are same-sex couples — who wish to sue her personally for damages.
Davis, the former Rowan County clerk, had previously refused to issue any marriage licenses in the county due to her personal, religiously-based opposition to same-sex marriage, and her desire to see her name and office removed from marriage licenses lest it be misinterpreted that she condoned or “endorsed” same-sex marriages.
But Thomas and Alito went further, saying that while Davis’s petition to have the lawsuit against her dismissed was not the right “vehicle” for challenging the high court’s 2015 Obergefell ruling, that the ruling should be ultimately be reversed, with same-sex couples’ ability to wed left up to individual state legislatures.
The justices claimed the reasons for this were that the court overstepped its bounds by assuming powers granted to the legislative branch, and, because it was not equipped to write laws, created one that contains insufficient exemptions for people with sincerely-held religious beliefs opposing homosexuality and same-sex marriage.
Speaking with reporters and LGBTQ advocates on a call arranged by the Human Rights Campaign, Obergefell — now a staff member of the LGBTQ advocacy group Family Equality — called Thomas and Alito’s remarks “deeply troubling, not only for our country, but for the LGBTQ community specifically and for me personally.”
He recounted how his fight to be listed on his husband John’s death certificate as his spouse — the two had legally married in Maryland because same-sex marriage was not legal in Ohio — was “an insult added to the injury of losing him.”
Quoting former Supreme Court Justice Anthony Kennedy’s decision in his own case, Obergefell noted that same-sex couples seeking to marry are not interested in disrespecting or degrading marriage, as some conservatives claim, but want to “find its fulfillment for themselves” rather than being “condemned to live in loneliness.”
“Marriage is a vital, important part of life, and it is something that must not be restricted based on who you are or whom you love,” Obergefell said. “It was the honor of my life to be able to marry my late husband, John. And it is unthinkable that Alito, Thomas and others on the Supreme Court but want to take away that right and the dignity that comes along with it.”
He added: “The comments this morning from Justices Alito and Thomas are deeply disturbing and upsetting. They signal that they are still willing to roll back progress to report rights away from LGBTQ+ people, and that, if given the chance, it would work to overturn the right to marriage that I and so many activists and advocates have fought for.”
Obergefelll also questioned the justices’ logic, asking whether a person’s particular interpretation or religious beliefs should take precedence over another’s, and, if so, whether people who oppose interracial marriage, hold anti-Semitic beliefs, or believes Christians are infidels could similarly discriminate against couples who are interracial, Jewish, or non-Muslim, for example.
He argued that Thomas and Alito’s vision for marriage would give precedence to one view of marriage held by practitioners of certain religious faiths.
Obergefell then turned to the pending confirmation of Trump nominee Amy Coney Barrett, saying her presence on the court would bring the country “closer to a reality in which LGBTQ+ rights could be stripped away by an unbalanced Supreme Court,” noting that Barrett has previously criticized the Obergefell decision.
He urged LGBTQ people and allies to “vote like our lives depend on it this year” to ensure future vacancies on the Supreme Court — and the lower courts — will be filled by judges that see LGBTQ people as deserving of equal treatment under the law.
HRC President Alphonso David slammed Barrett in his own remarks on the press call, noting that she has ties to Alliance Defending Freedom, a right-wing legal organization that challenges laws in the United States seeking to expand LGBTQ rights, has called for the criminalization of homosexuality and same-sex relationships both domestically and abroad, and has even advocated for the sterilization of transgender people.
He also pointed to a defense she made of the dissenting justices in the Obergefell case, saying that her past comments embracing a strict interpretation of the law leave no doubt how she would rule on crucial cases affecting LGBTQ people — and by extension, other marginalized populations.
Alphonso David — Photo: Todd Franson
With Barrett on the high court, David said, the conservative majority “could significantly water down what marriage means for LGBTQ couples across the nation to what the late, great Justice Ginsburg called ‘skim-milk marriage.’
“How would you feel if you were not allowed to visit your husband in a hospital because the hospital does not recognize him as your spouse? And what if those same officials allowed family members, who had not spoken to your spouse in years, to make life-or-death decisions on his behalf?” asked David. “This is what ‘skim milk’ marriage could mean for LGBTQ people. We have been here before, and we are not going back.”
Liberty Counsel, a right-wing law firm representing Davis, the Kentucky clerk, celebrated the Thomas-Alito dissent even as their client lost her appeal of a lower court’s decision finding she could be sued for denying marriage licenses, vowing to bring the case back up to the high court to challenge the Obergefell decision, which it believes to be wrongly decided, in the future.
“There has been no final ruling on whether Davis is liable for damages,” the group wrote in a press release. “Depending on how the case finally concludes at the lower court, Liberty Counsel will then file a petition to present the opportunity for the Supreme Court to address Obergefell.”
Liberty Counsel Founder and Chairman Mat Staver added: “Even though the High Court declined to take up qualified immunity, Justices Thomas and Alito are inviting future challenges regarding Obergefell and to fix the mess the Court created.”
The LGBTQ law firm Lambda Legal warned that LGBTQ rights will be under attack under a 6-3 conservative majority.
“The nightmare of a hostile Supreme Court majority is already here,” Lambda Legal CEO Kevin Jennings said in a statement. “The confirmation hearings for Judge Amy Coney Barrett haven’t even started yet and Justices Thomas and Alito are already creating a laundry list of cases they want to overturn. And unsurprisingly, marriage equality is first on the chopping block. Confirming Judge Barrett would be the final puzzle piece they need in order to make it happen.
“Overturning our right to legally marry the person we love and to protect our families would only be the beginning; none of the hard-fought rights that we have won in the courts are safe,” Jennings added. “That includes the right to marry, to work, or to be recognized as the legal parents of our children. But we will not be forced back into the closet. Lambda Legal has taken on tough fights before, beginning in 1973 when we had to sue for our very right to exist under New York law, and we’re ready for this one, too.”
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