On May 2, when news broke of Supreme Court Justice Samuel Alito’s leaked Roe v. Wade draft opinion, a societal earthquake struck the nation that continues to reverberate.
Alito’s draft is a blistering repudiation of the 1973 Court decision that protects abortion rights. “Roe v. Wade was egregiously wrong from the start,” he wrote in his incendiary opinion.
Normally soft-spoken and unflappable, Jim Obergefell is an LGBTQ activist who is currently running for the Ohio State Legislature. He was also the plaintiff in the 2015 Supreme Court Obergefell v. Hodges case that legalized same-sex marriage nationwide. He is now raising proverbial red flags to alert Americans about the possible consequences of an abortion ban.
Obergefell is deeply concerned that marriage equality—among other civil rights—are at risk if the high court decides to overturn five decades of abortion protections.
“It will be a very dark day for the rights of LGBTQ Americans if Roe falls,” Obergefell tells OutSmart. “Alito’s draft decision is supported 5 to 3 by the justices and is a clarion call for anyone who opposes marriage equality, to let them know they have like-minded friends on the Court.
“This decision is bigger than taking away a woman’s right to choose, or LGBTQ marriage equality. Overturning Roe would mean removing a person’s right to bodily autonomy, as well as our right to privacy!” Obergefell emphasizes.
Until now, many LGBTQ citizens were not aware of just how closelysame-sex marriage is tied to Roe v. Wade. Without it, the legal foundations used to argue Obergefell v. Hodges are gone, and more than half a million LGBTQ marriages could be invalidated.
Of particular concern is Alito’s reflection on the recognition of “constitutional rights” in the court’s decision 49 years ago. “The original decision held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned [in the Constitution],” Alito wrote.
The 2003 Supreme Court ruling in Lawrence v. Texas, which struck down anti-sodomy laws nationally, was based on the concept that Americans have a right to privacy.
On Friday, May 6, 2022, Alito made a public statement to the effect that he is also dubious of the high court’s ruling on workplace protections from discrimination for LGBTQ individuals.
“Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: ‘race, color, religion, national origin and sex,’” Alito said. “Neither ‘sexual orientation’ nor ‘gender identity’ appear on that list.”
In Alito’s view, the justices in 1964 could not have known that “sex discrimination” would grow to include LGBTQ people as American society evolved to recognize sexual identity. In his view, since this awareness did not exist at the time of the decision, the decision itself is invalid today.
“Alito’s argument that the court should not interpret the Constitution according to current-day societal values is extremely dangerous,” Obergefell states firmly. “By this reasoning, we would still exclude Blacks from all aspects of society because the first three words of the Constitution, ‘We the People,’ only included whites at the time it was written. Women would still be considered the property of their husbands and unable to vote. Interracial and same-sex couples would be unable to lawfully commit to the person they love.
“I cannot comprehend why any reasoning person, let alone the justices on our highest court, would argue that our laws must remain at a fixed point in the past,” Obergefell concludes.
Perhaps Ian Mackey, an out gay Missouri state representative, summarized it best in an email to the Washington Post. “If [Alito] prevails, and the Court begins treating every individual right not explicitly mentioned in the Bill of Rights as a policy dispute, we must presume it is only a matter of time before marriage equality, and the right to engage in an intimate same-sex relationship, is once again a policy dispute.
“Griswold v. Connecticut [granting the right use contraception], Loving v, Virginia [granting the right to interracial marriage], Roe v. Wade [granting a woman’s right to privacy regarding reproduction], Lawrence v. Texas [granting an adult’s right to privacy regarding sex], and Obergefell v. Hodges [granting the right to same-sex marriage] survive only together. One without the others is non-existent.
“The rights of the marginalized are bonded together through these decisions to form a single thread. If one [thread] is pulled out, the entire fabric is undone,” Mackey wrote.
What can citizens do? Jim Obergefell has an answer. “We can organize, and we must vote, vote, vote, vote, and vote!”
More on Obergefell and his Ohio campaign is at obergefellforohio.com.
This article appears in the June 2022 edition of OutSmart magazine.