US gay marriage ‘at serious risk’ under Trump, says man whose case legalised it

Same-sex marriage in America is “at serious risk” under the Trump administration, according to the man who won the landmark case that introduced it across the country a decade ago.

Jim Obergefell, who took his fight for equal marriage to the Supreme Court in 2015, told The i Paper in an exclusive interview that the rights established in Obergefell v Hodges “could unravel very quickly”.

Those who think same-sex marriage rights are safe “are fooling themselves”, he added.

Obergefell filed a lawsuit in his native Ohio in 2013 to ensure his marriage in Maryland to partner John Arthur could “never be erased”.

Arthur died before the case was decided, when the US Supreme Court ruled in their favour in June 2015 and established national protections for same-sex marriage.

Obergefell, 58, believes a number of measures could be introduced to remove those protections under the Trump administration, including a a blanket rights-removal of every married gay couple in America.

Speaking from his home in Sandusky, Ohio, he said: “The only thing people should assume is that there is worse coming, and he [Trump] will do anything he wants.”

In the first two months of his second term, Trump has signed executive orders saying the US government only recognises two sexes, banning transgender people from military service and has looked to roll back diversity, equality and inclusion (DEI) programmes.

Obergefell said Trump’s policies targeting LGBT people have left him “very concerned” about the threat to same-sex marriage and fears the US will return to a system where some states recognise marriage rights and others don’t.

His comments come as nine states have introduced petitions to the Supreme Court to re-examine same-sex marriage, five of which – Michigan, Idaho, Montana, North and South Dakota – have asked that Obergefell v Hodges be reconsidered.

He added: “It could unravel very quickly. The Supreme Court could decide ‘we’ve got these petitions from these states asking us to overturn it. We think they’re right.’”

Obergefell called on Americans to begin lobbying state and federal officials, saying: “We should be making phone calls, sending emails, doing everything we can, right now.”

He also urged married gay couples to seek immediate legal advice and create a “marriage box” containing all the things you can put in place that protect you as a couple”, including collecting documents on health insurance, tax, inheritance, immigration status and parental rights, which could be affected if laws are rolled back.

Concerns over the solidity of same-sex marriage have been growing since June 2022 when Roe v Wade – the 1973 Supreme Court ruling establishing federal abortion rights – was overturned. At the time, one of the justices, Clarence Thomas, wrote that the court “should reconsider” Obergefell v Hodges.

Leading human rights lawyer Al Gerhardstein, who represented Obergefell during the landmark case, said he believes one possible scenario could see a case filed at state level challenging Obergefell v Hodges, which then rises through the appeals courts to the Supreme Court.

This could still happen before the mid-term elections in November 2026. The Obergefell case was concluded within two years of it being filed.

But it is not only Obergefell v Hodges that could be overturned. According to Gerhardstein, a more aggressive and effective route to unravelling same-sex marriage would be repealing the Respect For Marriage Act 2022 (RFMA).

This was introduced in the wake of Roe v Wade being scrapped due to concerns that gay marriage could be next. Its purpose was to further cement the Obergefell decision and effectively revoke the 1996 Defence of Marriage Act (DOMA) which outlawed gay marriage.

Abolishing the Respect For Marriage Act could be done in one of two ways, according to Gerhardstein. First, following the overturning of Obergefell v Hodges, Congress could intervene to scrap RFMA.

“Both the House of Representatives and the Senate would have to pass a bill repealing the Respect for Marriage Act, and that would have to be signed by the President,” said Gerhardstein. Both are controlled by the Republicans, making this more possible. “If that occurred, then we are in deep trouble,” he said.

The other pathway would be Trump directly instigating the repeal. “If he did that then our backstop would be gone,” said Gerhardstein.

The most extreme scenario would be that existing marriages are annulled. “There’d have to be an affirmative law that announced that,” said Gerhardstein, which would then be challenged in the courts.

“Am I saying that there’s no chance that could never happen? No. If we’re on a rampage to strip gay people of all their rights, they’ll probably go for that.”

Trump has not directly addressed the issue of same-sex marriage since his second inauguration. In 2015 told CNN he supported “traditional marriage”, but days after being elected in 2016, said he was “fine” with gay marriage.

When asked if Trump planned to roll back same-sex marriage following his election victory last year, his incoming press secretary Karoline Leavitt, said “that was never a campaign promise that he made.”