Same-sex marriage & SCOTUS
Donald Trump may fill up to 3 spots for Justices of the Supreme Court of the United States (SCOTUS) during his presidency. He’s likely to fill those seats with opponents of same-sex marriage. Opponents of same-sex marriage dislike the recent SCOTUS holding Obergefell v. Hodges. Obergefell holds that same-sex marriages are constitutionally protected.
Unlikely court will reverse itself on same-sex marriage.
SCOTUS is unlikely to reverse itself, regardless of how the new Justices feel toward Obergefell.
This is because SCOTUS holdings are supposed to be final. SCOTUS decisions may “evolve” over time, but generally the court will not reverse itself. I’m not saying it can’t happen, I’m just saying it would be surprising. Thus, rather than overturn Obergefell, the court would likely systematically chip away at its protections.
Eviscerating same-sex marriage protections.
A conservative SCOTUS could chip away at Obergefell by limiting the recourse available to LGBT people who are discriminated against. For example, SCOTUS could hold that the First Amendment protects religious organizations who discriminate against LGBT people. In another case, SCOTUS could hold that the Civil Rights Act of 1964 does not protect LGBT people.
All SCOTUS needs is to hear one of these types of cases a year, and within 10 years Obergefell could end up being so utterly gutted as to be meaningless.
Step by step guide.
Here’s how opponents of same-sex marriage would undo Obergefell:
- First, the federal or state governments pass an unconstitutional law that allows for the discrimination of same-sex marriages, or somehow discriminate against LGBT marriages in some way.
- Second, wait for a lawsuit.
- Third, appeal to the appropriate appellate court (either state appellate court or the federal appellate court)
- Fourth, (if it is a state appeal), appeal to the state supreme court.
- Fifth, appeal to the US Supreme Court.
- Sixth, chip away and limit the rights granted to same-sex couples in Obergefell.
Can we prevent this?
It feels almost inevitable that anti-LGBT rights Justices would seek to disembowel Obergefell.
However, limiting LGBT people’s use of the legal system (especially appeals) so as not to expose SCOTUS to cases it can use to chip away at Obergefell would be counterproductive. It would be like clipping your own wings. The only option may be for the LGBT community and its allies to keep fighting for LGBT rights inside and outside the legal system. And hope that the SCOTUS does the right thing, regardless of politics.