Opponents in Landmark Gay Marriage Case Unite Against Barrett Nomination

WASHINGTON (CN) — The named plaintiff and defendant in the landmark Supreme Court case that upheld the fundamental rights of same-sex couples stood together Tuesday in opposition to Judge Amy Coney Barrett’s nomination to the nation’s highest court. 

Early next week, the GOP-controlled Senate is expected to confirm President Donald Trump’s pick to fill the seat held for 27 years by liberal icon Ruth Bader Ginsburg. 

But Jim Obergefell and Rick Hodges of Obergefell v. Hodges fame raised alarm at Barrett’s rise to Supreme Court justice, saying her record indicates she will ignore the constitutional right to full equality for LGBTQ Americans. 

“Rick and I stand here today together, to support that vision of full equality, won through the Obergefell v. Hodges decision that bears both of our names. We greatly fear that if Judge Amy Coney Barrett is confirmed to the Supreme Court, marriage equality could be chipped away,” Obergefell said. 

Identifying as a lifelong Republican and a person of faith, Hodges, who headed the Ohio Department of Health when Obergefell was decided, said he stands with the 70% of Americans who support marriage equality. 

“When we start talking about which groups deserve rights and which groups do not deserve rights, that threatens us all,” he said in a discussion held by video conference. 

A Trump nominee to the Seventh Circuit, Barrett told senators last week: “I assure you, I don’t have any agenda, and I’m not even expressing a view in disagreement of Obergefell.”

But Obergefell said while Trump’s nominee may not be joining the court with the motive to strike down rulings that backed LGBTQ rights, her conservative record raises concern about the future of equality for his community. 

“Her record clearly tells us that she would be detrimental to our well-being, and our ability to enjoy equality as full Americans,” he said. 

Barrett has espoused herself as a disciple of Justice Antonin Scalia’s originalist philosophy, interpreting the text of the Constitution as written. 

Pressed by Democrats to opine on whether landmark cases are settled law, Barrett agreed Brown v. Board of Education and Loving v. Virginia, which protected the rights of Black Americans, were rightly decided. 

But she declined to opine on Obergefell or the Supreme Court’s recent decision in Bostock v. Clayton County finding sex and gender discrimination of LGBTQ employees unconstitutional. Barrett tirelessly relied on the words of Ginsburg at her confirmation hearing saying she would provide “no hints, no previews, no forecasts.”

Three Democratic senators joined Obergefell and Hodges on Tuesday, calling on Senate Majority Leader Mitch McConnell to allow voters to have a voice in filling the Supreme Court seat by first casting their ballots for a president to nominate Ginsburg’s successor. 

“They could never overturn Obergefell v. Hodges through the ballot box, or through going through Congress, they know that. So they turn to the courts to legislate,” Senator Sherrod Brown of Ohio said. 

Hodges also stood behind Democrats’ top concern with Barrett’s nomination: her on-the-record opposition to the Affordable Care Act. 

While he is “still skeptical of the financial sustainability” of so-called Obamacare, Hodges said as the former director of the Ohio Department of Health he recognizes the federal health care law increased the lifespan of Cleveland residents by 26 years. 

“When you hear the statistics about how LGBTQ people are impacted differently by the health care system, and access to care, and suffer more health issues, you have to conclude that it is a fundamental right to life for people to be able to receive health care,” Hodges said. 

“It's an issue of basic equality and fairness in our country. And to undermine that by judicial fiat to me is unconscionable,” he added.

At the outset of last week’s politically charged confirmation hearing, Barrett had said that legal professionals often “treat the practice of law as all-consuming, while losing sight of everything else, but that makes for a shallow and unfulfilling life.”

Obergefell, who fought in the landmark case bearing his name for the right to be listed as the surviving spouse on his husband’s death certificate in 2013, said Tuesday that LGBTQ families once again face the possibility of a “shallow and unfulfilling life” if Barrett’s nomination swings the court to a 6-3 conservative majority. 

“Depending on state laws, we were not recognized as the families that we are; we could not file taxes jointly, or make medical decisions for one another, or, after a death, be treated legally as the surviving spouse ... These were the experiences, the routine discrimination, that sent us the message that we and our relationships and families were ‘less than,’” he said. 

Same-sex couples faced various discriminatory state laws before Obergefell, but the justices in a 5-4 ruling affirmed in 2015 that LGBTQ spouses are protected under both the due process clause and the equal protection clause of the 14^th Amendment. 

Justices Samuel Alito and Clarence Thomas kicked off the Supreme Court term this month by calling into question the soundness of that decision, writing the majority decision “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss."

But Ginsburg fought for what she called “full milk” marriage, rather than “skim milk” marriage, for same-sex couples, ensuring they held onto their constitutional right to full equality, Obergefell recalled Tuesday.

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