Progressive Pride Flag_by Tomas Diniz Santos
Marriage equality advocates during a congressional hearing July 14 raised fears that the right for same-sex couples to marry could be in peril in the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade.
LGBTQ activists delivered testimony before the House Judiciary Committee in a hearing titled, “What’s Next: The Threat to Individual Freedoms in a Post-Roe World,” putting the rights for same-sex couples to marry on par with abortion rights targeted by social conservatives in a 50-year effort.
Jim Obergefell, who was the lead plaintiff of the Obergefell v. Hodges decision that led the Supreme Court to rule in favor of marriage equality nationwide in 2015, gave deeply personal testimony about his efforts in securing state recognition of his marriage to his late spouse, who died of Lou Gehrig’s disease, as he made the plea to keep protection in courts.
“No couple, no family, should be forced to go to great financial expense and legal effort to gain a pale approximation of the rights and protections that come automatically with marriage,” Obergefell said. “That is not marriage, and it sets our relationships and families apart as something less worthy.”
The hearing was wide-ranging in the issues seen at play in the aftermath of the Dobbs decision, including marriage, contraception and intimacy for same-sex couples, which were called into question after Justice Clarence Thomas wrote in a concurrence decision that granting those rights should be reevaluated. Americans United for Life CEO Catherine Glenn Foster made news when she said a 10-year-old who was impregnated by rape should be forced to carry the child to full term.
Also delivering testimony before the committee was Human Rights Campaign Legal Director Sarah Warbelow, who envisioned an end to Lawrence v. Texas, the 2003 Supreme Court decision that struck down anti-sodomy laws, as a precursor to the end to marriage equality.
“To put it squarely, if Lawrence were overturned a marriage certificate could be evidence of a crime,” Warbelow said. “Today, nearly a dozen states retain laws criminalizing same-sex sexual relationships, and 35 states still have laws or constitutional amendments on the books that bar same-sex couples from marrying.”
Fears the Lawrence decision could be in danger were stoked by remarks from Texas Attorney General Ken Paxton, who said when asked during a media interview about having to defend his state’s laws against contraception, marriage or sodomy that he had a duty to defend them.
One pointed exchange during the hearing took place between Warbelow and U.S. Rep. Matt Gaetz (R-Fla.), who asked her about whether it was more likely a lesbian woman would be impregnated by sexual assault and want an abortion or a same-sex couple to seek to adopt a child.
It would make no sense, Gaetz said in a dubious argument, for same-sex couples to support abortion because many seek to adopt.
Warbelow had none of it.
“It may not be more likely, but it’s an important interest someone who needs access to abortion care be able to access it,” she said.
As part of the questioning, Gaetz also asked whether the definition of a bisexual woman is someone who would pursue sexual relationships with both men and women, but Warberlow said that was not the case. Gaetz’s response was part of an exchange that went out on social media.
Gaetz himself tweeted out the video, commenting it was a “truly remarkable” attempt to redefine bisexuality.
The Florida Republican concluded his testimony by asking to Warbelow to verify that no state legislatures has introduced legislation, or even conducted a hearing, on the idea of rescinding same-sex marriage in the aftermath of the Dobbs decision. Warbelow started to deny that account and say the time after Dobbs has been brief.
No serious effort is currently underway in any state seeking to roll back marriage rights for same-sex couples. The last such challenge was in 2020 and from the solicitor general of Indiana, who was seeking to challenge the decision on the basis of birth certificates for the children of women in same-sex marriages.
Even the current 6-3 conservative majority on the Supreme Court declined to hear the case.
