Senator Rob Portman (Jonathan Ernst/Reuters)

Senator Rob Portman said in 2013 that governments should recognize same-sex marriages. Now Jim Obergefell, whose name is on the case in which the Supreme Court forced all governments in the country to agree with that view, wants the senator to oppose one of President Trump’s appeals-court nominees over the issue. As solicitor general for Ohio, Eric Murphy had defended the state’s marriage law in the Supreme Court.


Obergefell claims that Murphy “made a forceful argument that my marriage was unconstitutional.” No, he didn’t. He argued that the state was not constitutionally obligated to recognize it. He did not argue that the state was constitutionally forbidden to recognize it.

Obergefell says that Murphy “should explicitly affirm that my Supreme Court case was correctly decided”–and, based on other comments he makes in the op-ed, affirm that the marriage laws Murphy previously defended were discriminatory and rooted in bigotry.

But Senator Portman has never said (at least in public) that he believes that people who disagree with him about the proper definition of marriage are bigoted. He has never said that the losing side in Obergefell was so obviously mistaken on the constitutional issue involved that they should repudiate their reading of the Constitution. He has never demanded that appeals-court nominees do anything more than affirm their respect for precedents. He hasn’t even asked Supreme Court nominees, who aren’t bound by precedent, to say that they think Obergefell was rightly decided as an original matter.

What Obergefell is demanding is that Portman take a position well to the Left of any position he has taken before, that he apply a kind of standard to judicial nominees that he has not applied before, in the name of consistency. He fails to demonstrate that the position he wants Portman to take is entailed by anything he has said or done in the past. The failure of Obergefell’s argument is perhaps not surprising, however, given his apparent inability to grasp the constitutional issues involved in his own case.