|Gorsuch and Roberts - will they end marriage equality?|
Will marriage equality remain the law of the land in the United States? When the Supreme Court ruled that the Constitution protects same-sex couples’ right to wed, its thundering decision seemed enduring and irrevocable. Yet just two years later, gay Americans’ marriage rights are once again under attack in conservative states—with the encouragement of some Supreme Court justices. It’s now clear that not all states, and certainly not all courts, view same-sex marriage as a settled issue. In fact, it’s increasingly apparent that marriage equality opponents have a long-term plan to roll back, and eventually reverse, the signature achievement of the U.S. gay rights movement.
[T]he Supreme Court’s 5–4 decision in Obergefell v. Hodges remains secure so long as its author, Justice Anthony Kennedy, remains on the court along with the four justices who joined his opinion. On June 26, in Pavan v. Smith, the court reaffirmed Obergefell’s core holding that states must extend all benefits and privileges of marriage to same-sex couples. But shortly thereafter, Kennedy retirement rumors resurfaced with a vengeance . . . .
At the very least, Kennedy is likely mulling retirement under Donald Trump and a Republican-controlled Senate. The consequences of Kennedy stepping down are difficult to overstate: Trump would likely replace him with a conservative hardliner like Justice Neil Gorsuch, creating a five-member bloc that could potentially demolish reproductive rights, voting rights, environmental protections, gun restrictions, and redistricting reform. No progressive victory enabled by Kennedy’s vote would be safe.
If Kennedy retires, Roberts will become the swing vote on marriage equality. It is difficult to imagine the chief justice supporting Obergefell in light of his previous dissent. An optimist might speculate that the chief justice, who cares deeply about the court’s institutional legitimacy, would uphold the decision as a matter of stare decisis. Roberts might reason that while he initially opposed Obergefell, he now has an obligation to follow it as a precedent of this court. Overturning the decision, after all, would throw same-sex couples into legal limbo. The ensuing chaos would not be a good look for the Roberts court.
But as the assault on Roe v. Wade has taught us, not all challenges to precedent must confront the original ruling head-on. Through sideways attacks, opponents can chip away at a decision until its foundation has been fatally undermined. Already, conservative states have launched two such attacks on Obergefell.
In the first of these efforts, Arkansas asserted that the Supreme Court’s same-sex marriage decision did not require the state to list married same-sex parents on their children’s birth certificates. This argument is plainly wrong . . . And yet, in late 2016, the Arkansas Supreme Court upheld the state’s refusal to extend these privileges to same-sex couples. Its decision appeared to be a bad-faith misreading of Obergefell: A majority of the (elected) justices claimed, falsely, that birth certificates are a record of biology, not a benefit of marriage, and are therefore exempt from Obergefell’s command of equal treatment. The U.S. Supreme Court reversed that decision in Pavan v. Smith, . . .
Roberts did not explicitly dissent from that ruling, which was issued per curiam without a single author. . . . . Gorsuch, on the other hand, did dissent, along with Justices Clarence Thomas and Samuel Alito. The newest justice wrote that the Arkansas Supreme Court “did not in any way seek to defy but rather earnestly engage Obergefell”—a laughable contention given the lower court’s obvious desire to avoid compliance with that ruling. Gorsuch then maintained that Arkansas has “a birth registration regime based on biology” and “rational reasons” to exclude same-sex couples, another blatant fiction.
Was Gorsuch genuinely baffled by the case? Was he intentionally muddying the waters? Who knows? Either way, his broader willingness to play along with Arkansas’ game sent a clear signal to other conservative states: If you want to defy Obergefell, my conservative colleagues and I are OK with that.
A few days later, the Texas Supreme Court signaled right back to Gorsuch that it was listening loud and clear. In a unanimous decision, the (elected) justices held that Obergefell does not clearly require states to extend spousal benefits to same-sex couples. Their bizarre decision approaches outright defiance of the U.S. Supreme Court. Spousal benefits, such as health insurance, obviously fall within “the constellation of benefits that the states have linked to marriage”—which under Obergefell, must be extended to same-sex couples. By pretending to believe otherwise, the Texas Supreme Court might as well have declared that it would not apply Obergefell at all.
The Texas justices were not quite as defiant as the Louisiana Supreme Court Justice Jefferson Hughes III, who announced in 2015 that he would never apply Obergefell because same-sex couples are child molesters (among other dubious reasons). But the result is largely the same: State supreme court justices are giving their governments the green light to resume discrimination against same-sex couples.
But what happens if Kennedy is replaced by a Gorsuch-style conservative? At that point, Roberts would be free to rewrite Windsor and Obergefell however he wants. Roberts could remain faithful to the original text of both decisions. He could also reverse them. But the likeliest possibility is that Roberts first cuts them down to a single guarantee—the right for same-sex couples to receive a marriage license with no attendant privileges. In case after case, Roberts could vote to allow discrimination against same-sex couples but affirm their right to the license itself. He could, for instance, permit the denial of spousal benefits to same-sex couples, contending that so long as gay people can marry, their rights have not been abridged.
And then, once Obergefell has been mostly gutted, Roberts could drop this pretense and deliver the final death blow, asserting that the decision had already been lethally eroded. It’s a classic Roberts trick.
Marriage equality is secure today. Obergefell will not fall tomorrow. But it is on shakier ground than most Americans probably realize. If Kennedy retires, the future of same-sex marriage will rest in the hands of a man who vehemently opposes gay rights. And nobody should count on the chief justice to uphold a decision he hates.
The irony is that same sex marriage in no way diminishes heterosexual marriage. The only thing it threatens is Christofascist beliefs that gays are sinners and less than human. Full equality invites the younger generations to question the Christofascists fear and hate based beliefs and that is why Gorsuch and those like him seek to destroy marriage equality.