Editor’s note: This story is excerpted from our special U.S. election newsletter, Rainbow Votes 2020. To get this content delivered straight to your inbox, subscribe now.
After one of the most chaotic weeks in American political history, Jim Obergefell is scared. Obergefell and I spoke on the phone just days after Trump’s Chernobyl-grade meltdown in the first presidential debate, which saw him frequently interrupting Joe Biden, attacking Biden’s son and his recovery from drug addiction and failing to condemn white supremacy when asked to denounce groups like the Proud Boys. Hours after our conversation, Trump was diagnosed with COVID-19, sending an already unpredictable election into a further tailspin.
Obergefell—whose namesake Supreme Court case, Obergefell v. Hodges, led to the legalization of marriage equality in the U.S. five years ago—compares the feeling to whiplash. “It seems like we’re lurching from one unbelievable thing to the next,” he says. “It’s tiring and it’s overwhelming.”
Chief among Obergefell’s worries is the Supreme Court. A week after Ginsburg’s sudden death on Sept. 18, Trump appointed Amy Coney Barrett of the Seventh Circuit Court of Appeals to fill her seat. The two could not be more diametrically opposed: Ginsburg, a liberal icon, fought the U.S. court system to recognize discrimination against women as a valid form of institutional bias. Coney Barrett, meanwhile, opposes the Affordable Care Act, believes the Supreme Court’s ruling to legalize abortion was “erroneous” and signed a letter referring to marriage as the “indissoluble commitment of a man and a woman.”
Of further concern to LGBTQ2 people, Coney Barrett claimed in a December 2016 lecture that trans people should not be entitled to protection under civil rights statutes banning sex-based bias in education. In the same speech, she misgendered trans women by referring to them as “physiological males,” and suggested they should not have equal access to public restrooms “where there are young girls present.”
Obergefell admits that he hasn’t combed through all of her legal rulings and statements over the years, but what he does know of Coney Barrett he doesn’t like. “If she’s sitting on the Court, I feel fairly confident that she would rule on the side that says legalized discrimination against us is constitutional,” he says.
Coney Barrett is currently facing a contested nomination process after Republicans blocked Barack Obama from appointing Merrick Garland to the bench in 2016. But should Coney Barrett be confirmed, Obergefell’s hypothesis about her leanings on LGBTQ2 rights will be tested in Fulton v. City of Philadelphia, a case scheduled to be heard by the Supreme Court on Nov. 4, one day after the presidential election. The outcome will determine whether religious adoption and foster care agencies have the constitutional right to turn away same-sex couples.
Obergefell says that the prospect of a court with Coney Barrett on the bench—which would lean 6-3 in favour of conservatives—ruling against LGBTQ2 families is “terrifying and disheartening.” “We’re supposed to move forward as a country,” he says with a sigh. “We’re supposed to move toward that value of ‘we the people’ and ‘equal justice under law,’ but I feel like we’re going back to a time when ‘we the people’ only means some of the people.”
But Obergefell adds that it is not merely the ability of LGBTQ2 people to build families that is at risk. Seven years ago, he filed a lawsuit after the state of Ohio, which did not recognize same-sex marriage at the time, refused to list him on the death certificate of his late husband, John Arthur. The two were married on the tarmac after booking a flight to Maryland in July 2013.
Now 54, Obergefell spent two years of his life fighting to have his relationship with Arthur be treated as fully equal under the law, and he fears that work could be erased. Trump has appointed more than 190 federal judges to the bench during his three and a half years in office, and all it would take, Obergefell says, is for “a panel of circuit judges, dominated by his appointees, to get a case of someone challenging marriage equality for them to ignore precedent and rule against equality.
“If there’s now a circuit split, once again, what’s going to happen is that the Supreme Court will take it,” he says, noting that the Court has “overturned precedent or ignored precedent” in the past. “That scares me to death.”
Shortly after we spoke, Supreme Court Justices Samuel Alito and Clarence Thomas signalled their openness to such a scenario. In a written opinion penned on behalf of the bench’s most conservative members, Thomas referred to the Obergefell ruling as “a novel constitutional right” and suggested that the Court needed to “fix” the mistake it made in legalizing marriage equality.