The namesake of the landmark Supreme Court ruling establishing marriage equality says he has “concerns” about the Respect for Marriage Act now making its way through the Senate.
Jim Obergefell’s court case pursuing the right to be listed on his husband John Arthur’s death certificate led to the historic establishment of a national right for same-sex couples to marry. After Justice Clarence Thomas signaled his interest in undoing that, however, Democrats sought to protect same-sex marriage by resting it not solely on a legal foundation but on a legislative one, as well.
But to write same-sex marriage into federal law means overcoming a potential Senate filibuster. Democrats have agreed to a compromise amendment, due for a procedural vote on Monday, to get some Republicans on board.
But the resulting bill has Obergefell worried.
In a phone interview Monday, he wrestled with whether the bill’s advances are worth the damage it may do. But either way, he’s clear that he wants Democrats to address that damage and engage in substantive dialogue about the meaning of “religious freedom,” the amendment’s core issue.
Asked about the bill generally, Obergefell said, “I’m thrilled that we have the likelihood of marriage equality being codified at the federal level,” adding, unprompted, “but I do have some concerns about it.”
Obergefell cited two things. The first was that the bill will let states once again refuse to marry same-sex couples – while still legally bound to honor such marriages performed in other states.
Asked whether that’s worth the tradeoff, Obergefell doesn’t answer at first, but says, “The other thing that they’ve added is protections for religious liberty.”
He’s referring to the amendment, which reaffirms a 1993 law that was passed to protect the free exercise of religion but has since been used by the right, at times successfully, to argue that individual religious beliefs justify corporate and institutional discrimination against LGBTQ people and others.
As TYT has reported, Obergefell is not the first to raise concerns about reaffirming that 1993 law, the Religious Freedom Restoration Act (RFRA).
When pressed a second time whether the bill’s downsides are worth codifying a federal right to marriage, Obergefell says, “I don’t know how to answer that, honestly.”
Ultimately, Obergefell lays out his calculus on the bill, starting with its historical context.
“I look at our nation’s history,” he says, “and a lot of the progress we have made in our nation has been progress in bits and pieces. We start, we go backwards, we start again and right now I will take it.”
Citing the requirement that even states which don’t perform same-sex marriages must still recognize them, Obergefell says, “Given the state of the Supreme Court – and the, in my opinion, extreme right-wing bent of the Supreme Court – I just feel like, okay, we’ve gotta take what we can get.”
He adds, “If the Respect For Marriage Act does protect our rights as married couples and as families in our nation, I’m certainly not going to say no. Could it be better? Yes.”
But he also has an ask for the Democratic Party: To stop eliding the meaning of “religious freedom.”
Media coverage of the bill seldom defines precisely what religious freedom means. But each party interprets the phrase differently. Democrats tend to see it in a benign context: The right to practice one’s religion in ways that don’t conflict with laws that apply equally to everyone.
The Christian right, however, has framed religious freedom to include the right of individuals to run their businesses and institutions in ways that are consistent with their personal interpretations of their religions’ tenets, even if it runs afoul of anti-discrimination laws.
“Religious freedom,” in this framing, means denying service to LGBTQ people. But its elasticity is potentially infinite, capable of justifying defiance of any law that even countenances behavior deemed offensive by a religious person. Under President Donald Trump, the federal government used RFRA to argue that a nonprofit foster-care agency receiving tax dollars could exclude non-Christian families when placing children.
In September, a Texas judge sided with a company arguing that RFRA allowed the company to exclude HIV drugs from its employee healthcare plan. That way, the company’s lawsuit argued, the company’s owners would not violate their religious beliefs by encouraging or facilitating “homosexual behavior.”
Obergefell said, “Oh, my God,” when told about the Texas ruling. But he's not the only one who was unaware of it, and RFRA’s role in it.
When TYT asked Sen. Bernie Sanders (I-VT) last week whether he knew about the Texas ruling, he said, “I did not, honestly, I did not see that. Let me find out more about it. You’re telling me something new.”
Senate Maj. Leader Chuck Schumer (D-NY), who sponsored RFRA when he was in the House, has not responded to TYT’s questions about RFRA. Nor have Sens. Tammy Baldwin (D-WI) and Kyrsten Sinema (D-AZ), the Senate’s only LGBTQ members and the authors of the amendment.
In other words, it's not clear that Democrats understand the implications of adding an amendment reinforcing RFRA. If they do, they're not saying.
When asked about the apparent Democratic silence on the dueling meanings of “religious freedom” being advanced in RFMA and its amendment, Obergefell said, “I’m right there with you.”
He said that, “Until we come together as a nation to say, ‘This is what religious freedom means,’ this is going to continue.”
The meaning of religious freedom hasn’t featured in Democratic discussion of RFMA so far. That could change when the amendment itself comes up for a vote on Monday. Asked whether he wants to see Democrats make that happen, Obergefell says, “I think it’s long past time to have the debate about what religious freedom actually means in our nation, so yeah. Because it isn’t what the extreme right wing is pushing.”
Even aside from LGBTQ issues, Obergefell has some experience with right-wing disregard for the law. He just lost his race for an Ohio state House seat after state Republicans refused to comply with a judicial ruling against their gerrymandered maps.
That same disregard has manifested in how marriage equality is respected – or not – regardless of the law. Because, Obergefell says, even after the day he won his case at the Supreme Court, the status of same-sex marriage has not been one of equality.
“It isn’t like our marriages have been fully equal since June 26, 2015, anyway,” he says. He rattles off a list of officials, businesses, and rulings that have stood in the way of true equality. “[Former Kentucky County Clerk] Kim Davis, Masterpiece Cakeshop, Fulton v. Philadelphia, all of these things,” he says. “We’ve enjoyed the ability to get married … but we don’t enjoy marriage equality and we haven’t.”
Nevertheless, he says, the political perils of the moment require him to support RFMA.
“In some ways this keeps the status quo,” Obergefell said. “And I’m not a fan of saying, ‘It’s the status quo, so it’s good,’ but given the political environment in our nation and the power of the extreme religious right wing right now, I’ll take it… It’s not perfect but we could do a lot worse.”
He singled out the concurring opinion by Justice Thomas as a potential harbinger. “Given how Thomas teed up challenges to Obergefell v. Hodges, a whole lot worse could come down the pike," he said. "It disgusts me and disheartens me that people in our nation seem incapable of being decent people.”
Even with its amendment, and even with Democrats silent on “religious freedom,” Obergefell supports the Respect For Marriage Act. At a perilous moment for civil rights, he says, passing the RFMA is “better than running the risk of having Obergefell v. Hodges being overturned and losing everything.”
With additional reporting by Washington Correspondent Candice Cole.
Jonathan Larsen is TYT’s managing editor. You can find him on Twitter @JTLarsen_.