WASHINGTON — In his draft decision overturning Roe v. Wade, Supreme Court Justice Samuel Alito tries to limit the blast radius of his ruling by writing that abortion is fundamentally different from other privacy matters — like contraception and marriage equality — that have historically challenged the court.
“The abortion right,” Alito writes, is “critically different from any other right that this Court has held fall within the 14th Amendment’s protection of ‘liberty.’” Overturning one, he says, would not necessarily undermine the others.
Jim Obergefell doesn’t believe him.
The plaintiff in the landmark 2015 case before the Supreme Court that established same-sex marriage as a constitutional right now says he is tired, disheartened and terrified of what may come after reading Alito’s sweeping rationale in the draft decision published this week by Politico.
“I’ve been asked if I believe what he says in that decision — that this is specific to a woman’s right to an abortion, and really should not be used on marriage equality,” Obergefell told McClatchy in an interview. “I don’t believe that whatsoever, because so many of the things he says in that decision open the door to using those arguments against marriage equality. And where does it stop?
“I’m terrified. I really can’t put it any more simply than that. I am terrified,” he continued. “Marriage equality, while we had it for seven years, clearly will not pass his definition of tradition or history.”
Obergefell v. Hodges was a landmark civil rights case that culminated after years of litigation in a 5-4 decision at the high court, requiring all 50 states and U.S. territories to perform and recognize same-sex marriages the same as opposite-sex marriages.
Alito dissented from that decision, and in a speech to the Federalist Society in 2020 criticized it once again. “You can’t say marriage is a union between one man and one woman,” he told the conservative organization. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
At that time, Alito found himself in the minority. But the retirement of Justice Anthony Kennedy — who wrote the Obergefell decision and several other key gay rights decisions that preceded it — provided then-President Donald Trump with an opening to nominate a conservative replacement. Trump chose Brett Kavanaugh, who currently supports the decision to overturn Roe that Obergefell now fears.
“All I have to say is, they said in their confirmation hearings that they considered Roe v. Wade settled law,” Obergefell said. “Clearly they were misleading the Senate — not being truthful — so regardless of what they said during their confirmation hearings about marriage equality.”
“Losing Justice Kennedy was a loss to the LGBTQ+ community because he was so instrumental in decisions bringing us forward as a nation and toward a more perfect union,” he added.
Gay rights organizations told McClatchy they have been preparing for a decision ending Roe v. Wade for months, but were nevertheless stunned by the sheer sweep of Alito’s written opinion. Top officials and attorneys at the Human Rights Campaign held an emergency huddle Monday night when the leaked draft published, and both HRC and GLAAD leaders are working to mobilize support for protests around the country with abortion rights groups.
“The fact that Alito in this decision takes the track that, if these fundamental rights that we enjoy in our nation are not specifically enumerated in our Constitution, then they’re questionable and should only be based on our nation’s history and traditions – to me that is one of the scariest things to hear a Supreme Court justice say,” Obergefell said.
“The history and tradition in North America, in the land now known as the United States of America, was for white people to own Black people. There’s a longer tradition there than there is of freedom,” he added. “So it’s just a terrifying thing.”
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