12 Oct 2020 Is Same-Sex Marriage at Risk in Supreme Court? 5 Things LGBTQ Families Should Know
As the U.S. Supreme Court reconvened last week for the first time since the death of Justice Ruth Bader Ginsberg, conservative U.S. Supreme Court Justices Clarence Thomas and Samuel A. Alito Jr. came out with a harsh critique of the court’s 2015 decision legalizing same-sex marriage—sparking a surge of anxiety for LGBTQ couples and their families who have watched the Trump administration chip away at their hard-won rights.
Writing on behalf of LGBTQ advocacy organization Family Equality Council, Jim Obergefell, plaintiff in the 2015 same-sex marriage case, says “there is no question that we are at a heightened risk of attacks against our marriages and families.
“Deciding not to hear an appeal from Kim Davis (the infamous Kentucky county clerk who was sued for refusing to issue marriage licenses to same-sex couples) should have been good news. That is, until Justices Thomas and Alito released a statement questioning the landmark precedent establishing nationwide marriage equality in the case that bears my name: Obergefell v. Hodges.”
Following the 2016 presidential election, with all three branches of government under Republican control, we heard from lots of LGBTQ people concerned about the potential risk to their marriage rights. We wrote then:
“In fact, the greater danger to your family’s security under a Trump presidency may be legislative efforts to defund and weaken our societal safety nets such as Social Security, Medicare and the Affordable Care Act. As governor of Indiana, Vice President-elect Mike Pence enacted and defended a ‘religious freedom’ law that would have allowed businesses to discriminate against LGBT people on the basis of religion, although he later backpedaled. And Trump has paid lip service to supporting a national law that would protect states’ rights to enact such discriminatory laws. Arguably, these and other issues are of more immediate concern than the loss of marriage equality.
While this latest threat to revoke their right to marry is understandably terrifying for LGBTQ people, keep in mind that the historic 2015 decision in Obergefell v. Hodges establishing same-sex marriage as a constitutional right is not before the Court at this time.
Even Justice Thomas, who wrote the recent dissent opinion criticizing Obergefell, is not proposing to overturn it. Rather, he seems to support chipping away at Obergefell piecemeal, via religious freedom cases.
Here are five things you should know about last week’s Thomas-Alito decision and the state of same-sex marriage in the United States.
1) Thomas’s and Alito’s attack on same-sex marriage is nothing new
The two conservative justices voted against marriage equality in 2015 when Obergefell was heard, so their objections do not constitute a change in position. Their dissent in the 5-4 Obergefell decision cited the same objection cited in their recent dissent when the Court declined to hear a separate but related case, Kim Davis v. David Ermold, et al.
There is little doubt their opinion was timed to impact the political conversation around the upcoming presidential election and the confirmation of conservative Judge Amy Coney Barrett to the Supreme Court—even as voting is already underway.
As The Chicago Tribune reported, “The stinging opinion from Thomas renewed the debate over how established the Court’s Obergefell decision should be seen. Some liberal activists said it was an indication the court might revisit the decision, especially if President Trump’s nomination of Judge Amy Coney Barrett is successful.
Following the Obergefell decision in 2015, Davis, a former county clerk for Rowan County, Kentucky, refused to issue marriage licenses to any couples so that she would not be forced to issue licenses to same-sex couples in violation of her religious beliefs. As the report continues, “[s]he was sued by gay and straight couples, and a federal judge ordered Davis to issue the licenses. She refused and spent five days in jail.” She was defeated in her re-election bid.
The case made national headlines. As the Tribune report continues:
“She was released only after her staff issued the licenses on her behalf but removed her name from the form. The state legislature later enacted a law removing the names of all county clerks from state marriage licenses.
“A federal judge later ruled Kentucky taxpayers must pay the couples' legal fees of about $225,000.”
Davis’ claim of qualified immunity in the suit against her was rejected by a panel of the 6th Circuit U.S. Court of Appeals. Last week, the U.S. Supreme Court declined to take up the case, with Thomas and Alito in agreement with the Court’s denial of the writ of certiorari, even as they issued their dissent attacking Obergefell and same-sex marriage.
2) Supreme Court Justices don’t always vote the way we think they will
Barrett’s likely Senate confirmation to fill the seat of the late Justice Ruth Bader Ginsberg would tip the U.S. Supreme Court further to the right, creating a 6-3 conservative majority.
But history has shown us that Supreme Court justices, who are appointed for life, don’t always vote in accordance with their liberal or conservative backgrounds. For example, now-retired Justice Anthony Kennedy, who was nominated to the Court by President Ronald Reagan, angered conservatives in 1992 when he joined with Justices Sandra Day O’Connor and David Souter to uphold Roe v. Wade in the case Planned Parenthood v. Casey.
When Obergefell was decided in 2015, Kennedy wrote the majority opinion, joining liberal Justices Ruth Bader Ginsberg, Steven Breyer, Sonia Sotomayor and Elena Kagan. Conservative Chief Justice John Roberts, with Justices Antonin Scalia, now deceased, Thomas and Alito dissenting.
Trump has since succeeded in filling two Supreme Court seats with conservative jurists. In 2017, he filled the vacancy left by Justice Scalia’s death, after Mitch McConnell and the Republican-majority Senate refused to hold hearings on President Barack Obama’s nominee, Merrick Garland. In 2018, upon Justice Kennedy’s retirement, the Senate confirmed Trump nominee Brett Kavanaugh following a lurid confirmation process and hasty FBI investigation of sexual assault allegations.
Now it appears likely the Senate will confirm a third Trump nominee, Barrett, in a rushed procedure held as much of the country is already voting in the presidential election, widening the presumed conservative-liberal gap on the court to 6-3.
But keep in mind that two of the justices seated under Republican administrations, Roberts and Trump’s own nominee, Neil Gorsuch, are very concerned with what big business wants, as their voting records demonstrate. And big business doesn't want a patchwork of laws where someone is married in one state and not in another. Insurance companies, for instance, want to know if someone is married or not; uncertainty is expensive.
Historically, the Court has not so much led the country’s policies as responded to social change in progress. Despite conservative opposition to LGBTQ equality and marriage equality, American society as a whole now supports and defends those ideals. Even with more conservative justices on the bench, the Roberts Court is likely to resist dragging the country in the opposite direction.
The more likely scenario, to which Thomas alludes in the recent Baker dissent, is that the Court will use religious liberty challenges to carve out more limited exceptions for those whose religious beliefs preclude their acceptance of LGBTQ rights. While that is still a concerning prospect for the months and years ahead, it is a slower, more circumscribed kind of attack than a sweeping reversal of Obergefell.
3) Even if the Supreme Court overturns same-sex marriage, LGBTQ people who are married now will remain legally married
The most likely scenario if same-sex marriage laws were reversed is that already married same-sex couples would remain married.
Remember Proposition 8 way back in 2008? In May 2008, the California Supreme Court struck down two state laws that limited marriage to heterosexual couples, legalizing same-sex marriage in the state. By that fall, 26,000 California same-sex couples had wed.
But in November, in the same election that brought Barack Obama to the U.S. presidency, California voters passed Prop 8, which amended the state constitution to limit marriage to one and one woman, stripping LGBTQ Californians of the right they had won just months earlier.
But those 26,000 same-sex couples already married under California law? They were not suddenly “unmarried” as a result of Prop 8. Rather they remained legally married, in a class that was separate and protected—creating yet another sub-class of persons treated differently under the law—exactly what the equal protection clause of the U.S. Constitution protects against. The resulting chaos impacted everything from income tax reporting to health and pension benefits. Proposition 8 was ruled unconstitutional by the U.S. Supreme Court in 2009.
4) Don’t panic. Prepare to protect your family and your parental rights
If you are in a same-sex marriage, let the recent Thomas-Alito decision scare you just enough to make sure you complete that second-parent adoption and get your wills and estate plan done.
In most jurisdictions, when one parent is not biologically related to a child born via surrogacy, the non-biological parent must undergo a second-parent adoption establishing the non-bio parent as the child’s legal parent. Even if this extra step is not a requirement in your state, a second-parent adoption will protect parental rights even if the family moves or is traveling in a different state.
Likewise, be sure you are prepared for the unexpected. Make sure you have wills, estate plans and guardianships in place to ensure your most precious assets—your children and your family—are protected, regardless of changes to the political landscape.
Our experienced team of IFLG fertility lawyers and paralegals can answer all your questions about parental establishment and family planning documents and what will provide the most security in your unique situation.
5) Elections have consequences
Without a doubt, the 2020 presidential election is the most critical of our lifetimes.
We should remind everyone we know to do their part to ensure justice and equality—and to help take back the Senate and help give Biden a landslide. Contribute to campaigns if you can and talk to everyone you know.
The future of the Supreme Court is unclear. Even with an electoral win for the Democrats, the transition to a new president is threatened, and better assured with a landslide.
That said, I don't see an imminent threat from these statements from Thomas and Alito. Obergefell is not before the Court, and it is not clear the Court has an appetite for taking it on headfirst anytime soon.
What is more likely is that the court would create religious exemptions allowing government workers and public officials to deny services to LGBTQ people so long as there are others who will perform the civic duty.
For example, someone like Kim Davis in Kentucky would have the legal right refuse to sign a marriage certificate, but someone else in the clerk's office would have to do it. Not that I agree with this solution, of course, but it seems like SCOTUS, in a worst-case scenario, is more likely to chip away at our rights rather than get rid of them altogether.
Although letting one city/county clerk at a time deny same-sex couples their legal rights on religious grounds is the most likely outcome in the foreseeable future, given the good news that the Supreme Court has declined to take up the case, even that terrible outcome is unlikely, at least for right now.
Of course, I tend toward optimism and faith that the moral arc of the universe bends toward justice (and equality and freedom).
That said, a little bit of alarm right now is not so bad and is not unwarranted. We all must be vigilant in keeping an eye out for signs of trouble, for threats to our democracy and to the safety of our non-traditional families.
Don’t panic. Get your house in order, get active if you can, and, above all, vote.