Dem
47
GOP
53
In 2015, in Obergefell v. Hodges, the Supreme Court ruled that a man could marry another man and a woman could marry another woman, nationwide, regardless of state laws banning same. Conservatives were up in arms and have never accepted this. They think that in this term, the Supreme Court may be poised to undo what they consider depravity. They could be right. After all, the Court revoked Roe v. Wade after 50 years and Obergefell is only 10 years old.
University of Baltimore Law Professor Kimberly Wehle has written an opinion piece explaining how and why this might happen. The bottom line is this: There is a case being appealed to the Court now that it could take and use as a vehicle for repealing Obergefell and the votes might be there. In 2015, the votes for the decision came from justices Elena Kagan, Sonia Sotomayor, Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer. The latter three are no longer on the Court. The no votes were John Roberts, Clarence Thomas, Samuel Alito, and Antonin Scalia. Of these, the first three are still on the Court. Assuming no one has changed his or her mind, there are probably two votes to keep Obergefell and three votes to repeal it. Since then, there has been one Democratic appointee (Ketanji Brown Jackson) and three Republican appointees (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). If everyone votes the party line, there are probably six votes there to repeal Obergefell.
There is another change since 2015 besides membership in the Court. Back then, the standard for deciding cases was always the actual words in the Constitution, not the intent of some law or what Congress had in mind. Since Dobbs, the standard is now history and tradition. If something has always been done a certain way, then that is how it should be done, and vice-versa. Since abortion has been illegal in most states for most of history, that is how it should be, and Roe was tossed aside as a weird outlier.
If the history and tradition test is applied to same-sex marriage, it is likely to fail because same-sex marriage was illegal in most states for most of U.S. history. There is no history or tradition for it, so it can't possibly be a right guaranteed by the Constitution. Thus, it will be easy for the Court to rule, there is no federal right to same-sex marriages. In that case, it will be up to the states, the same as abortion, and there will be a patchwork of conflicting laws. A key issue will then become whether states that don't allow such marriages will be required to honor marriages done in states that do honor them. Art. IV of the Constitution does require states to honor each other's laws and institutions, but that has never been tested the way it will be if Obergefell is cast aside. Also, will a same-sex couple in California be able to file a joint federal tax return? What happens if they move to Texas?
The vehicle that the Court could use to upend Obergefell could be a case filed by former Kentucky county clerk Kim Davis, who refused to issue marriage licenses to gay couples because that violated her religious beliefs. Lawsuits followed, including a $100,000 judgment against her. She is asking the Court to overturn Obergefell and thus the judgment. The Court could easily determine (by a 6-3 vote), that Davis' First Amendment right to practice her religion in the workplace is more important than anything else.
There are some precedents here. In 2022, the Court held that a public-school football coach had the right to pray with his players after a game. Also in 2022, it held Maine's offer of tuition assistance to nonreligious schools in remote areas violated the rights of parents who wanted money to send their kids to religious schools, even schools whose explicit mission was to get each unsaved student to "follow Christ as Lord of his/her life." In 2023, Gorsuch wrote a majority opinion saying that a Colorado law banning discrimination against gay people was unconstitutional because a website designer was worried that some day a gay couple would ask her to design a wedding site for them and that would violate her religious beliefs. That is so wrong on many fronts, especially since the Court almost never rules on cases that haven't even happened yet. Normally such a case would happen only when a gay couple asked her to design a website and she refused and they sued. In any case, the point is that there is reason to suspect that the Court is just itching to get rid of Obergefell.
The stakes here are enormous, and not just for gay couples. If this one goes by the wayside, then precedent no longer matters and the next time the Court has a Democratic majority (for example, if a future Democratic Congress decides to expand the Court), the Court could reinstate Obergefell. Then the next Republican majority could throw it out again. In effect, the whole concept of the rule of law goes out the window. All that matters is which party currently has a majority on the Supreme Court. We don't know for sure, but we suspect this is not exactly what James Madison had in mind when he wrote the Constitution. Especially since the courts were kind of an afterthought (Art. III). (V)