Exactly 100 days since President Barack Obama nominated Judge Merrick Garland for the Supreme Court and two days shy of the one-year anniversary of the high court’s decision to legalize marriage equality nationwide, the lead plaintiff in that landmark gay rights case is calling on Senate Republicans to “do their job” and hold a confirmation hearing.
Jim Obergefell won the right to have his marriage to his late husband, John Arthur, recognized by the couple’s home state of Ohio in last year’s Supreme Court case, Obergefell v. Hodges. The 5-4 decision handed down on June 26, 2015, also cleared the way for thousands of other same-sex couples to marry in any state.
Hailed as the pinnacle of the modern gay rights movement, the ruling marked the culmination of decades of activism and litigation and represented a major cultural shift toward fuller LGBT equality in America. But had the case gone before the high court as it stands now with only eight justices, Obergefell told reporters on a press call Friday, things could have been very different.
“For me personally, I have to think about this recent 4-4 split,” Obergefell said, referring to Thursday’s decision that kept frozen Obama’s executive actions on immigration. The court is still short a member months after the death of Justice Antonin Scalia, one of the most conservative members on the bench.
Scalia dissented from the Obergefell ruling, so his passing would not have changed the outcome of that case. But Thursday’s split still underscored the importance of having a full panel of justices to decide the country’s most pressing legal issues.
“If that had happened a year ago, and if it were a different justice who passed away, a 4-4 split could have meant we would have been denied the right to marry and have our lawful marriages recognized,” Obergefell said. “It is unconscionable that these Republicans continue to obstruct.”
In March, Obama nominated Garland, a federal judge once described by Utah Republican Sen. Orrin Hatch as “not only a fine nominee, but as good as Republicans can expect from [a Democratic] administration.” Yet Senate Republicans have pledged not to consider any nominee offered by the current president, saying it should be a right reserved for his successor. According to one study published online by the New York University Law Review, such categorical refusal to offer advice and consent on a sitting president’s Supreme Court pick is unprecedented.
The absence of a ninth justice on Thursday dealt a near fatal blow to Obama’s deportation relief plans, actions that were designed to bring millions of undocumented immigrants out of the shadows. As Obergefell noted, it’s a fate he was to a certain extent fortunate to avoid; because his case went before the justices at that moment, with that particular panel, his union no longer exists in the shadows of his own state.
As for the anniversary of his legal victory on Sunday, Obergefell plans to celebrate with a quiet, “unplanned” day.
“I will likely go to the Supreme Court and sit on the steps, think about John, and think about where we have to go,” he said.