Two years after the Supreme Court struck down Roe v. Wade, abolishing half a century of precedent, activists feared that other high court decisions could be at risk. Their concerns are reflected in opinion polls. California, Colorado and Hawaii will soon allow residents to vote on ballot measures that would remove language banning same-sex marriage from their state constitutions.
The landmark 2015 Obergefell v. Hodges decision guaranteed same-sex couples across the country the right to marry, making those state bans unenforceable. However, these ballot measures are intended to proactively protect these marriage rights in the event that Obergefell is overturned.
Georgetown law professor Paul Smith argues that the landmark 2003 Supreme Court case Lawrence v. Texas, which struck down the nation’s remaining anti-sodomy laws, and the high court’s Dobbs v. Jackson Women’s Health Organization decision in 1973, It said it had invalidated the landmark ruling of 2017. The Roe v. Wade abortion decision should serve as a cautionary tale.
“We have an example of how Dobbs can overturn long-standing precedent. All of a sudden, a state law that was dormant has come back to life.” said, referring to the dozens of states that ban abortion. “These states don’t want same-sex marriage bans reinstated again, so they’re going to take steps just in case.”
Smith pointed to Justice Clarence Thomas’ concurring opinion in the 2022 Dobbs decision to examine potential concerns.
Supreme Court Justices Samuel Alito and Clarence Thomas in Washington in 2021. Erin Schaff/Getty Images File
“Future cases will need to revisit all of the court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Any substantive due process decisions should be ‘patently erroneous.’ “Therefore, we have a duty to ‘correct the errors’ established in these cases,” Thomas wrote. (Griswold v. Connecticut is a 1965 high court decision that established a married couple’s right to contraception.)
Earlier this year, Justice Samuel Alito renewed his criticism of Obergefell by refusing to intervene in a lower court case over a dispute over the dismissal of a juror who had expressed religious concerns about homosexuality. Alito wrote that the case “exemplifies the dangers” found in the 2015 ruling.
“In short, Americans who do not hide their adherence to traditional religious beliefs regarding homosexual behavior will be ‘labeled bigots and treated as such’ by the government,” he wrote.
The Supreme Court has nine members, six appointed by Republican presidents and three appointed by Democrats, making it the most conservative in 100 years. Ahead of the 2024 election, Republican senators are hopeful that former President Donald Trump’s return to the White House could help him win confirmation from lower court judges as well as more conservative judges. I am doing it.
Mary Bonauto, one of the lawyers who argued Obergefell before the Supreme Court, said the high court is “a very unpredictable court at this point,” and that it is not likely to be used in the same way it is in California, Colorado and Hawaii. He added that the voting system is a tool that each state uses. their power.
“They’re willing to overturn precedent,” Bonauto said of the Supreme Court. “They have completely reshaped the way we deal with government power.”
Bonauto, who currently serves as senior director of civil rights and legal strategy at GLBTQ Legal Advocates and Defenders (GLAD), believes the current climate presents an opportunity to remove currently unenforceable language banning same-sex marriage. He said he doesn’t understand why people who have it would delete it. Their state constitution says “there will be no jumping on it.”
According to the Movement Advancement Project, an LGBTQ think tank, 30 states currently have constitutional amendments banning same-sex marriage, and five states have enacted laws banning such marriages. A further five states have enacted statutory bans, although their constitutions have not been amended. In most of these cases, if Obergefell is overturned, the now-dormant state anti-abortion laws would go into effect, just as long-dormant state abortion laws went into effect after Roe v. Wade was overturned. (Constitutional amendments to protect or expand abortion rights are expected to be on the ballot in 10 states next month), Smith said.
Without Obergefell, there is a federal law that largely, but not completely, leaves same-sex marriage rights intact: the Respect for Marriage Act. The bipartisan bill, signed into law by President Joe Biden in 2022, guarantees federal protections for same-sex and interracial marriages. The law requires the federal government to recognize these marriages and guarantee them full federal benefits, but stops short of requiring each state to issue marriage licenses, contrary to state law.
Bonauto and Smith agree that the bill is important, but Bonauto said it could always be repealed if the balance of power in Congress changes. Smith said the bill would leave people in conservative states vulnerable.
“Even if you could travel to New York to get married, if all of a sudden there was a provision in the law that you couldn’t choose your spouse from among all the people in the state… that would be terrible. Bookkeeping. It’s on there,” Smith said. “Even if there was a workaround through the Respect for Marriage Act, I don’t think the state would want to restore something like that, second-class citizenship.”
Susie Bates, campaign director for Colorado Marriage Freedom, a nonpartisan organization dedicated to preserving equal marriage rights for same-sex couples, said that if Obergefell was overturned and states did not rely on the Respect for Marriage Act, Once that happens, “it’s going to be really opaque,” he said. ”
“There is no guarantee that we will have marriage equality in our state unless we take proactive steps,” she says.
This is a personal issue for LGBTQ couples who have had to navigate a time when same-sex marriage was neither legal nor easy.
