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Is Marriage Equality Next Target for SCOTUS Conservative Supermajority?

Probably not, but there may be a more insidious threat aiming to erode legal recognition of same-sex marriage.

June 14, 2022

Seven years ago, the Supreme Court’s ruling in Oberge­fell v. Hodges exten­ded the free­dom to marry to gay and lesbian couples nation­wide. It was a remark­able victory for a scrappy social move­ment that succeeded in winning hearts and minds — in the face of deep soci­etal resist­ance — through a combin­a­tion of lawsuits, polit­ical mobil­iz­a­tion, and smart appeals to public senti­ment. Pres­id­ent Barack Obama, one of many converts to the cause, said the decision “affirms what millions of Amer­ic­ans already believe in their hearts.”

In the wave of euphoria that accom­pan­ied this mile­stone in the advance­ment of human dignity and equal­ity, it was easy to forget that the case was decided by the narrow­est of margins: five votes to four. Since then, the ideo­lo­gical center of the Court has shif­ted sharply to the right. There are now six sitting justices who believe that Oberge­fell was wrongly decided. 

Does that mean this hard-won gain is now on shaky ground?

Histor­ic­ally, the justices have been reluct­ant to over­rule cases that expand rights. But a myster­i­ously leaked opin­ion in Dobbs v. Jack­son Women’s Health Organ­iz­a­tion, a closely watched case concern­ing abor­tion rights, has left many people worried about a new phase of combat in a national debate that seemed to be settled.

The draft opin­ion in Dobbs, purportedly craf­ted by Justice Samuel Alito on behalf of a five-justice major­ity, suggests that the Court is prepared to over­turn the 49-year-old preced­ent of Roe v. Wade, repu­di­at­ing the right to termin­ate one’s own preg­nancy as “egre­giously wrong from the start.” While only a draft that might still be changed, the docu­ment is notable for its shock­ingly narrow concep­tion of what consti­tutes a funda­mental right. In Alito’s view, when rights are not expli­citly or impli­citly mentioned in the Consti­tu­tion’s text, only those that are “deeply rooted in Amer­ican history” should be protec­ted by the courts. The right to an abor­tion, the justice says, is no such right. Neither, of course, is the right of gay and lesbian couples to marry.

To soften the blow of the juris­pru­den­tial hammer, Alito suggests that the Court’s action would not “cast doubt on preced­ents that do not concern abor­tion.” But that hasn’t stopped worried comment­at­ors from sound­ing the alarm. Writ­ing for Vox, Ian Mill­hiser warns that the leaked opin­ion is noth­ing less than “a mani­festo laying out a compre­hens­ive theory of which rights are protec­ted by the Consti­tu­tion and which rights should not be enforced by the court.”

Could Oberge­fell be the next preced­ent to fall? 

Possibly. It’s worth remem­ber­ing that Alito wrote an angry dissent in that case, dispar­aging the Court’s ruling with the same line of attack he now deploys to doom Roe. It was “beyond dispute,” Alito insisted, that the right to same-sex marriage was not among those rights “deeply rooted” in history and tradi­tion. Notably, he harped on “the newness of the right,” noting it was “contrary to long-estab­lished tradi­tion.”

That said, even “new” rights can take root with amaz­ing speed. Since Oberge­fell was decided, most Amer­ic­ans have come to embrace marriage equal­ity as a matter of funda­mental fair­ness. Support for same-sex marriage has never been higher, rising from 54 percent in 2014 to 68 percent today. During that time, more than half a million gay and lesbian couples have entered into marriages and formed famil­ies. Those unions could not be easily undone should the Court dare to over­turn Oberge­fell and allow states to once again “define” marriage to exclude gay and lesbian couples.

For these reas­ons, most Court observ­ers doubt that the justices would attempt to turn back the clock on marriage equal­ity. But the fallout from the Dobbs decision is not the only threat on the hori­zon. For gay and lesbian couples who have only recently enjoyed the bene­fits and dignity of marriage, a quiet campaign to erode legal recog­ni­tion of same-sex unions in the name of “reli­gious liberty” may pose a more insi­di­ous threat.

Like the campaign of “massive resist­ance” led by die-hard segreg­a­tion­ists in the wake of Brown v. Board of Educa­tion, reli­gious right activ­ists quickly pivoted from the loss in Oberge­fell to a strategy of under­min­ing it by arguing that meas­ures adop­ted to uphold the equal­ity of LGBTQ people can viol­ate other people’s “reli­gious liberty.” The Alli­ance Defend­ing Free­dom (ADF), a legal advocacy group commit­ted to “ensur­ing the law respects God’s created order for marriage, the family, and human sexu­al­ity,” has led the charge.

In 2017, just two years after Oberge­fell, the group brought same-sex marriage back before the justices in the case of Master­piece Cakeshop v. Color­ado Civil Rights Commis­sion. In that dispute, ADF lawyers repres­en­ted a Color­ado baker who refused to design a cake inten­ded for the wedding of two gay men, citing his reli­gious objec­tion to their union. The couple sued under the state’s anti­discrim­in­a­tion law. In a 7–2 ruling, the Court affirmed that while states may protect gay and lesbian couples from discrim­in­a­tion, reli­gious objec­tions to same-sex unions remain protec­ted forms of expres­sion under the First Amend­ment

Three years later, in 2020, the justices were asked to hear the case of Kim Davis, a Kentucky county clerk who refused to issue marriage licenses to same-sex couples, citing “God’s author­ity.” Though the Court declined to take the case, Justice Alito, joined by Clar­ence Thomas, another jurist with a long record of hostil­ity toward LGBTQ rights, took the oppor­tun­ity to seem­ingly endorse a broad reli­gious liberty loop­hole. Ventur­ing that Davis “may have been one of the first victims of this Court’s cava­lier treat­ment of reli­gion in its Oberge­fell decision,” the two main­tained that “those with sincerely held reli­gious beliefs concern­ing marriage will find it increas­ingly diffi­cult to parti­cip­ate in soci­ety without running afoul of Oberge­fell and its effect on other anti­discrim­in­a­tion laws.”

In neither case were the justices ready to announce a prin­ciple that would allow indi­vidu­als to overtly flout the law in the name of reli­gious liberty, but that may be about to change after four years of judi­cial appoint­ments by Pres­id­ent Donald Trump. Among the 226 judges appoin­ted during his tenure are many foot soldiers in the Chris­tian right legal move­ment. They have already shown them­selves to be sympath­etic to lawsuits by conser­vat­ive Chris­ti­ans seek­ing to opt out of comply­ing with laws protect­ing LGBTQ people.

Seven years after Oberge­fell, the debate over same-sex marriage appears far from over. Those who support marriage equal­ity should not be compla­cent. While Oberge­fell is likely safe, the forces of reac­tion will continue their attempts to whittle down the right as much as possible. And that means, more than ever, we need an engaged public will­ing to stand up to those who seek to roll back progress. Rights lost are rarely recovered.