Hearing threat to Roe vs. Wade, I thought of my gay marriage — and Jim Obergefell’s fight
I’ve thought about Jim Obergefell often since we first spoke nine years ago, after his historic marriage to his husband on an airport tarmac outside Baltimore.
He’s come to mind mostly during big moments in my own life as a gay man in America.
I thought of Jim and his late husband, John Arthur, when I first considered proposing to my husband, Aaron, and the promises — in sickness and in health, till death do us part — that I’d be making.
I thought of Jim and John again when Aaron and I exchanged vows in San Francisco City Hall in 2018, with our families around us and the bust of Harvey Milk nearby. We chose City Hall for its beauty and ease, but could have been anywhere in the country — a right Jim and John won us by overcoming a mountain of obstacles just to reach that tarmac.
I thought of Jim again last week, around the time I was emailing our lawyers about the next set of paperwork to file in our pursuit of U.S. citizenship for Aaron, who is Australian.
The need to lock in Aaron’s rightful place in this country suddenly felt more urgent after Politico published a leaked draft of a U.S. Supreme Court opinion that called for the landmark abortion rights case Roe vs. Wade to be overturned.
Like President Biden, many legal scholars and LGBTQ activists across the country, I worried that the same legal arguments used to topple Roe would be redeployed by anti-gay factions in this country to go after the right to same-sex marriage that was established in Jim’s case, Obergefell vs. Hodges, in 2015.
In his draft decision in Dobbs vs. Jackson Women’s Health Organization, which is the name ofthe case challenging Roe, Justice Samuel A. Alito Jr. argues that the Roe ruling in 1973 essentially invented a right to abortion that was neither articulated in the Constitution nor “deeply rooted in the nation’s history and traditions.”
He tosses aside the legal conclusion of Roe that the right to an abortion was grounded in the broader right to liberty and privacy, and concludes that Roe unjustly stripped the authority to legislate such matters from the states.
Alito wrote that his line of reasoning did not apply to rights other than abortion. But were the court to adopt Alito’s reasoning or anything close to it, some scholars believe other rights that hinge on broader protections but aren’t explicitly spelled out could fall, too.
To be clear, people who can get pregnant — particularly poor women living in states that are primed to ban abortion as soon as possible — would lose the most if this decision holds, not cisgender white men who live in California like me.
But that doesn’t mean we can’t or shouldn’t talk about the broader fears and threats to civil rights posed by Alito’s originalist reasoning.
A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report in Politico.
At least, that’s what I was thinking when I called Jim, who as I expected had already been ruminating on it all — and gearing back up for battle.
“This is a very dark day for women in America, as their right to control their own body is being taken away. They deserve their moment to say, ‘You know what? This is affecting us more than other people in this country,’ ” Jim told me. “But I also look at this as a needed wake-up call for a lot of people in our nation who have been content and who haven’t really realized the risk that we all face as far as our civil rights, our fundamental rights, our human rights.”
Jim, 55, wasn’t always so outspoken.
Born in 1966, Jim entered the University of Cincinnati as a closeted freshman in 1984, just “starting to dip my toe into the world of being who I was” but “scared to death” of HIV, the still poorly understood virus ravaging the nation’s gay community.
In part because of that fear, and in part because of the societal shame still associated with being gay, Jim “slammed that closet door closed” that same year. “I buried that part of me,” he said.
He didn’t open it again until years later, after he’d left his job as a high school German teacher to attend graduate school and started meeting other people who were out — including John, who was “so comfortable in his own skin as a gay man” that it unsettled, and excited, Jim.
The third time they hung out was New Year’s Eve in 1992. From then on they were together, and they considered that night their anniversary.
For the next 20 years, they lived as partners do. Jim and John did corporate training and consulting, and worked at multiple companies together. There were ups and downs, as in all relationships, but they were happy. John’s extroverted nature balanced Jim’s quietness.
“John was that person who would walk into a room, and by the time he left he would have met every person at the party, while I was standing in a corner thinking, ‘Can’t we just go home?’ ” Jim recalled with a laugh.
But that would change. John would get sick. The unfairness of the nation’s laws for gay couples — including those facing death — would hit home, and Jim felt something rising up in him.
“I want to be part of the fight,” he told me the first time we spoke in 2013, when I was a Baltimore Sun reporter with a self-appointed side beat covering LGBTQ issues.
If the Supreme Court overturns Roe vs. Wade, it would be foolish to think that the rights to same-sex marriage and contraception are safe.
Jim and John lived in Ohio at the time, but I became aware of them that summer when with the help of friends and family they chartered a private jet specially outfitted with medical equipment to BWI Thurgood Marshall Airport to get married.
At the time, same-sex marriages were legal in Maryland but not in Ohio. The jet was necessary because John, who was battling amyotrophic lateral sclerosis, or Lou Gehrig’s disease, could travel only under special conditions.
There on the tarmac, they wed and then flew home. “For once in our 20 years together, we really feel like full Americans,” Jim told me shortly afterward. In just a few months, John was dead at age 48.
Two years later, I spoke to Jim again, about his and John’s legal challenge to have their Maryland marriage recognized by Ohio, including on John’s death certificate. The case by then had wound its way up, along with several other same-sex marriage cases, to the Supreme Court, and was poised to win marriage rights for same-sex couples across the country.
“Never in my wildest dreams did I imagine something like this could happen,” Jim told me about his and John’s case taking on so much national importance. He also said how dearly he missed John.
I was just shy of my 30th birthday at the time, had been single nearly my entire life, and marriage still seemed a far-off proposition for me. But I knew I wanted it one day, and I recognized the profound gift that Jim and so many other LGBTQ activists were giving to me and other queer people of my generation by fighting so hard to make marriage a possibility for us.
When Obergefell indeed became the law of the land, making same-sex marriages legal nationwide, I was proud to have told Jim and John’s story early on.
I met my husband a year and a half later. We’ve now been married more than four years. Most people hardly blink when I say “my husband” now, or their eyes warm slightly, acknowledging their approval. Gay marriage, thanks to Obergefell, has become normal for many, maybe most.
And yet, suddenly, it feels fragile again — like my marriage could be ripped away despite it being central to who I am. I had heard from Jim how wonderful it felt to finally gain the right to marry, so I asked him how he felt now.
The Supreme Court’s historic ruling Friday granting gays and lesbians an equal right to marry nationwide puts an exclamation point on a profound shift in law and public attitudes, and creates the most significant and controversial new constitutional liberty in more than a generation.
“Overwhelmed,” he said. “Scared. Terrified. Disillusioned. Disheartened.”
Were the court to apply Alito’s rationale to same-sex marriage, married Americans could find themselves in a position where they would be legally married in one state but not in another, Jim said, just as women under Alito’s opinion would be able to have an abortion in one state but not in another. Couples would once again have to fly to another state to get married.
“We’re supposed to be part of ‘We the people,’ ‘One nation, with liberty and justice for all,’ ” Jim told me. “Well, to argue that something as fundamental to humanity as family is subject to a border, that is not one nation.”
Jim thinks John would scoff, likely with a clever but genuine quip, at the cruelness of the threatened backtracking. He misses his husband’s wit and humor, especially now.
“This week, to be honest, I missed him desperately,” Jim said. “It’s been a rough week and I just miss having that person who I could snuggle up against or lean on, talk to, no matter how horrible things are, no matter how challenging the world is. I miss having that person who was there and could make things better just by the virtue of being there.”
It’s been hard without John, particularly through the COVID-19 pandemic, Jim said. Last summer he moved back to his hometown of Sandusky, Ohio, to be close to his five siblings and their families.
There’s also been purpose, though. Jim never lost the fight that built in him when he and John fought all the way to the Supreme Court. He remains an outspoken LGBTQ advocate, and he’s running for a seat in the Ohio House.
John would be proud, Jim thinks.
I know the feeling.
If Roe vs. Wade is overturned, it will continue a trend in U.S. culture against privacy, human rights and individual liberty.
I’ve watched over the last four years as my husband, Aaron, has moved to the U.S., moved across the country with me, found a good job and worked hard and thrived. Our relationship was largely long-distance before we moved to L.A. in April 2020 — the early, scary days of the pandemic — but here we finally settled into our very own apartment together and had the chance to grow as a couple.
Those who would want to expand on Alito’s reasoning will say our right to marry wasn’t spelled out explicitly in the Constitution, or that such a right isn’t “deeply rooted” in our nation’s history. They’ll say the legitimacy of our union should be left up to state legislators.
Even the suggestion that these arguments are applicable to my marriage, to my love for my husband, is — and I don’t use this word lightly — infuriating.
It’s a rage that I’d hoped queer Americans my age and younger would be largely spared, after LGBTQ pioneers before us suffered through it for most or all of their lives.
Jim said he has been thinking about those pioneers this past week and imagining “how tired they are, how disgusted they are.”
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He said he also has been thinking about all the younger LGBTQ people who, like me, have told him over the years how profoundly improved their lives have been thanks to his and John’s winning them the right to marry.
“I’ve seen what a difference it makes in young people’s lives when they see that they matter, they see that they have opportunities, that they can have the same dreams as a straight kid,” Jim told me. “I’ve seen how important and how vital to our nation this has been, and to now realize how at risk it is? I keep using the word ‘terrified,’ but I’m terrified.”
All across the country, there are people — women, people of color, LGBTQ people — who are wondering anew whether the rights they have won in recent decades are to be snatched away because they aren’t “deeply rooted” in this nation’s misogynistic, racist and homophobic past.
That, for Jim, is devastating. But, he said, it’s also power.
“There are countless people who believe in our nation and the promise of our nation — a nation that truly lives up to ‘we the people.’ And we will continue to fight.”
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