The Growing Fight Against Marriage Equality
Several Justices have already signaled they're on board with overturning Obergefell v. Hodges. The post The Growing Fight Against Marriage Equality appeared first on Above the Law.
Marriage equality enjoys widespread support in the United States — the latest Gallup poll puts support of the right at 69 percent. But that doesn’t mean shit to the the Supreme Court. The conservative majority on the Court is gunning for Obergefell, the landmark case that held there is a federal constitutional right to same-sex marriage. Samuel Alito’s unhinged dissent in the case — that he still can’t let go of — sets the stage for an eventual elimination of the right. Alito’s majority opinion overturning established precedent guaranteeing the right to reproductive freedom in Dobbs creates parallels between the right established in Obergefell v. Hodges and reproductive freedom, as they’re not “deeply rooted in history.” And the concurrence written by Clarence Thomas explicitly says the Court should “reconsider” its jurisprudence on marriage equality (as well as the Court’s holdings on consensual sexual contact and contraception).
The conservative Court is getting an assist from states. Newsweek has put together a helpful compilation of all the threats to marriage equality. And it isn’t great.
State legislatures in five states are trying to tee up the issue for the Court, though they’re in various stages. In Idaho and North Dakota, House legislatures have approved measures asking SCOTUS to overturn Obergefell. In Wyoming and South Dakota, similar measures have been introduced. In Michigan, this week, a resolution was introduced that condemns the decision as being “at odds with the Constitution of the United States and the principles upon which the United States is established.”
Of course, resolutions do not a case or controversy make. As Kate Shaw, a law professor at the University of Pennsylvania Carey Law School, notes, “If a state sought to go further—to pass or enforce a law that limited marriage to opposite-sex couples, in clear violation of Obergefell—a challenge to that law could quickly make its way to the Supreme Court.” But that doesn’t feel so far off.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
The post The Growing Fight Against Marriage Equality appeared first on Above the Law.
