The Man Who Made Marriage Possible Discusses the Kavanaugh Threat


Following the death of his husband, John, Jim Obergefell took the fight for marriage equality all the way to the Supreme Court. His 2015 victory at our country’s highest court brought national recognition for same-sex marriages. Just three years later, if Trump nominee Brett Kavanaugh is confirmed, the Supreme Court will shift sharply to the right on civil rights and LGBTQ equality issues. Obergefell recently sat down with SAGE CEO Michael Adams to discuss what a SCOTUS with Kavanaugh might mean for LGBTQ people.

Michael Adams: Your victory made marriage equality the law of the land. On a personal level, what did it mean to you to know that you could take your case to the nation’s highest court and get a fair and open-minded hearing?
Jim Obergefell: When we started the lawsuit in federal district court, in the back corner of my mind, I knew that the Supreme Court was a possibility. But it was also one of those things that you never truly believe is going to happen. Knowing that the Supreme Court had recently overturned the Defense of Marriage Act — effectively saying to same-sex couples, “Yes, your marriage does matter, it does exist” — that gave me hope. It gave me some comfort knowing that there would be, or could be, one final answer.

What do you think Brett Kavanaugh’s possible addition to the court could mean for the next generation of people like you, who just want to love who they love and have their day in court?
I think the potential is there for him to have a dramatic negative impact. I’m worried that it could cause people who have been discriminated against not to pursue legal action because they might doubt the idea that they could take their case all the way to the Supreme Court and win. I worry that they will decide it’s not worth it.

You were in the Supreme Court. You sat at the table, looked up at the bench, and saw the justices who voted for and against marriage equality. What if instead you saw a court where the majority was composed of Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh? What might that feel like?
I think I would be looking at that bench knowing that those justices don’t believe I’m equal, don’t believe that I deserve the same rights, and believe our community doesn’t matter. I would be terrified. I certainly wouldn’t be sitting in that courtroom feeling optimistic like I was on June 26, 2015.

Is there anything that concerns you in particular about the nomination of Kavanaugh?
Kavanaugh is an originalist who believes we can only take the Constitution and its meaning based on exactly how it was written at the time when it was written. That scares me, because the constitution needs to live, breathe, and change, just like our society does. I think it’s the height of hubris to assume one knows exactly what the writers of the Constitution meant at the time it was being written, or that by writing this document, their intent was to shackle the future to their 18th century understanding of the world.

LGBT legal battles have often been closely linked to the battles of other communities. For example, court victories for a woman’s right to choose were important precedents in our community’s legal battles to end so-called sodomy laws. Court fights in the 1950s and 1960s to end bans on interracial marriage helped lay the groundwork for marriage equality. How worried are you that a Trump-influenced Supreme Court could lead to setbacks not only for the LGBT community but for our social justice allies and for people who are parts of intersectional communities?
I’m very worried. The recent Supreme Court decision weakening the Voting Rights Act is now being used over and over again, across the nation, to deny people — primarily people of color — their right to vote. It’s being used to wipe existing voter registrations off the books. As the Supreme Court moves further to the right, that’s going to continue. I also worry about a woman’s right to control her own body being taken away. I worry about the plight of immigrants, people who are not Christian, the list goes on. All marginalized minority communities should be worried about the Supreme Court lurching to the right and taking us back. A lot of people say it’s like they want to take us back to the 1950s, but honestly, I think they want to take it back more to about 1850.

These issues and communities rise and fall together.
Absolutely. I think it’s naive to think that any minority group is safe, because any argument, any law, any policy that has been used in the past to target or discriminate against one minority group is being reused to target other minority groups. So we have to be one united voice regardless of whether we’re LGBT, people of color, women—we’re all targeted, we’re all minorities, we’re all marginalized. We have to work together.

Let’s switch gears a little bit. You recently joined SAGE’s board of directors. SAGE uses tools like cultural competency training and policy advocacy to bring about systems change, rather than through courts. Do you think those kinds of change strategies will become more important if things get more difficult in the courts?
Definitely. Lasting change happens when it’s a cultural shift and when the majority of people who believe in something are willing to stand up for it. The courts are the venue of last resort, and we need them. The decision made in my case, and decisions in a lot of our cases — Windsor and Lawrence and so many others — that’s how we’ve been able to rely on the Constitution. We’ve had a fair and impartial court saying, regardless of what public opinion or the current laws say, “This is what our nation’s founding document says, and this applies.”

But lasting change comes about through one-on-one conversations, through cultural change, through societal change. And that’s, in essence, what cultural competency training and policy advocacy are doing. These methods ensure that we’re not just changing a law because a court said so—we’re changing a law or policies because the people say so.

We’re starting to see lawsuits against nursing homes and retirement communities that discriminate against LGBTQ elders. What kind of impact do you think those lawsuits might have, not only in the courts but in the court of public opinion and with regard to culture change?
We’re in one of those moments where people who normally think about the law and civil rights at an abstract level take it to heart. The default many people have is, “If I don’t have this issue, nobody else does.” But when these lawsuits end up in the courts—and in the public consciousness because of the news—it provides an “aha” moment of, “Wait, what do you mean a gay person can be fired simply because they’re gay?” Or, “Why is this couple who have been together for 40 years being turned away from a nursing home?”

You’re referring to the recent lawsuit filed by the National Center for Lesbian Rights in St. Louis on behalf of an older lesbian couple who were denied admission to a continuing care retirement community because their relationship was not a “biblical marriage.”
I think most people can understand that this is a couple that has been together for decades, and the notion that they shouldn’t be allowed access because somebody doesn’t approve of their relationship is contradictory of the fundamental values of our country.

The LGBTQ community has a history of very courageous people taking their cases to the courts, especially during times when there was little reason to believe that they could succeed. People like Frank Kameny in the 1950s and ’60s, who was challenging discrimination with relation to security clearances and government employment. Or the folks who were litigating the first so-called gay marriage case in the early 1970s, Baker v. Nelson. Then, of course the iconic Edie Windsor, who fought her battle for marriage equality at the Supreme Court a couple of years before your case. When your case went to the Supreme Court, did you feel like you were standing on the shoulders of the folks who came before you?
Without a doubt. Without Edie and her courage and determination to stand up for what’s right, our case would have never happened. We would have never gotten married if it weren’t for Edie and Thea. And there are so many other heroes. You mentioned some, and I also include Harvey Milk, Matthew Shepard, and so many more. There are so many people who came before me and gave their all, including, sadly, their lives.

One of the things that I wish that we, as an LGBT community, did better was teach our history. Maybe one day we’ll get the Smithsonian to do a museum for us, because we need to make sure that people know about the people who came before us. They need to know of our elders and what they sacrificed and what their lives were like. Without them, we would have nothing. We owe them, and we owe it to them to fight.

This article originally appeared in The Advocate on September 6, 2018.
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