Obergefell, who brought the landmark supreme court case on marriage equality, says LGBT rights are at risk under a Republican-controlled Congress

This article is more than 3 years old

This article is more than 3 years old

One of the plaintiffs in the landmark US marriage equality case doubts Donald Trump’s assurances that same-sex marriage is “settled law” that will not be revisited by the supreme court.

In comments to the Guardian, Jim Obergefell, who is in Australia to promote his co-authored book Love Wins about the case and its plaintiffs, also weighed into the Australian debate, warning against a popular vote that would allow a majority to deny the minority the right to same-sex marriage.

Trump told CBS’s 60 Minutes that he was “fine” with marriage equality “because it was already settled”, in comments in his first TV interview as US president-elect, aired on Sunday evening.

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Asked whether he supported same-sex marriage, which was made law by the supreme court in Obergefell v Hodges in 2015, Trump suggested the case did not concern him to the degree of the abortion case Roe v Wade.

“It’s irrelevant,” he said, “Because it was already settled. It’s law. It was settled in the supreme court. I mean it’s done.”

“It’s hard to say exactly what Donald Trump truly believes, because he changes his story, left and right all the time,” Obergefell said.

“That’s a concern right there: does he really mean that, or is that what came out of mouth at that moment?”

Obergefell said Trump would “still nominate those opposed to marriage equality”.

“In general it’s a risk that those he would nominate, by virtue of their overall beliefs and judgments, would be those opposed to marriage equality and open to overturning it,” he said. “It’s part and parcel of the types of justices he would nominate.”

Obergefell said his biggest concern was that the vice-president-elect, Mike Pence, “is the most anti-LGBT politician I can think of”.

“I highly doubt that Pence will let this issue lie, he will do everything he can to deny our rights, to take back rights we’ve won, and to overturn marriage equality.”

Pence, the Indiana governor, has opposed same-sex marriage throughout his career, and supported so-called “conversion therapy” programs that purport to change people’s sexual orientation.

Pence also signed a religious freedom law that sought to allow people to refuse service to same-sex couples because of religious convictions.

Regardless of what Trump said, Congress was controlled by Republicans who opposed pro-LGBT laws, Obergefell said.

In Australia, the conservative Coalition government has proposed a plebiscite, a popular vote, to decide whether or not to legalise same-sex marriage. The proposal has been blocked by opposition parties who want a vote in parliament to bring about same-sex marriage.

Obergefell said he could understand both sides of the argument – that the plebiscite could be a means to achieve marriage equality, but was viewed by opponents as a “waste of time and effort”.

He said the fact that marriage equality had been rejected by state constitutional amendments in the US was used in the landmark case to argue it was invalid for the supreme court to legalise same-sex marriage.

“Our legal team’s argument was: there is no surer way to infringe on the rights of a minority than to allow a majority to vote on it.”

The outcome of a vote “doesn’t make it legal, doesn’t make it right” to deny same-sex couples the ability to marry, he said.

Since the supreme court ruled that same-sex marriage was a right guaranteed by the 14th amendment, granting equality before the law, Obergefell said acceptance of same-sex marriage had grown.

“What has happened since then is that as same-sex couples get married, they are out in their communities, living their lives.

“It lets others meet and get to know them. It stops being an abstract concept, and they see it’s something already know – it’s marriage, and it takes away the mystery around that.”