Will SCOTUS Overturn Obergefell?
We asked three attorneys with LGBTQ case experience what they think
Super Lawyers online-exclusive
By Carly Nairn on February 13, 2023
After the U.S. Supreme Court overturned Roe v. Wade in 2022, people naturally began to wonder: What landmark ruling might be next on the chopping block? One of the most common to be mentioned is Obergefell v. Hodges, which federally upholds the right to same-sex marriage. So while the media pundits deliberate and citizens remain unsure, Super Lawyers decided to check in with three attorneys to find out what they think about the possibility.
We talked with:
- John J. Bursch, the former Michigan Solicitor General who fought against same-sex marriage at the state level and has appeared before SCOTUS several times
- Paula Greisen, an employment and labor attorney in Denver who represented the same-sex couple in the original trial against Masterpiece Cakeshop
- Laura E. Landenwich, the litigator in Louisville who fought Rowan County Clerk Kim Davis, who refused to issue same-sex marriage licenses
Super Lawyers: What do you think is the likelihood of SCOTUS overturning Obergefell in the next year or two? Are you increasingly thinking about it?
Landenwich: I was asked this question a few years ago, and answered definitively no. At the time, I reasoned that stare decisis coupled with the normalization of gay family life made a reversal of Obergefell extremely unlikely. I still believe it is unlikely. Recall that, in 2020, Justices Gorsuch and Roberts (who dissented in Obergefell) were among the majority in Bostock, which held that Title VII protects gay and transgender workers from discrimination in the terms and conditions of employment. Given recent criticism about the court’s politicization, I think it is very unlikely that the court would take up a challenge to Obergefell. After the Dobbs decision, however, anything is possible.
Greisen: I think the reason that Congress codified the right for same-sex people to marry in the Respect for Marriage Act reflects a significant concern that the current court would try to overturn or limit Obergefell. The dissenting conservative jurist in Obergefell made it very clear that they believed the decision was “misguided” and would threaten religious freedom in this country. Quoting John Locke, they urged that the original meaning of the Constitution only recognized marriage as between a man and a woman and the opinion has thus strayed from “the text of the Constitution.” Given the current conservative makeup of the court, there are legitimate fears that the Obergefell precedent could be overturned.
Bursch: The likelihood of SCOTUS overturning Obergefell in the next year or two is zero. While it is undeniably true that a bare, five-justice majority in Obergefell made up a right to same-sex marriage that does not exist anywhere in the text, history, or tradition of the U.S. Constitution, the current justices have not indicated this is an issue they intend to tackle. When Justice Thomas raised the point in his concurring opinion in Dobbs, not a single justice joined his opinion. Indeed, the majority opinion in Dobbs went out of its way to explain that overruling Roe v. Wade was quite different than overruling other decisions that fabricated constitutional rights (like Obergefell) because Roe involved the taking of innocent human life.
SL: With the recent passage of the Respect for Marriage Act, what is at stake if the case is overturned?
Greisen: States would no longer have to grant a marriage license to a gay couple. However, the Respect for Marriage Act would still require a state to recognize a same-sex marriage license from another state that allowed gay marriage. If the court overrules Obergefell, I would expect an immediate constitutional challenge to the enforcement of the Respect for Marriage Act.
Bursch: Scaremongers have used the boogeyman of a potential overturning to push through the misleadingly named “Respect for Marriage Act.” The Act requires federal recognition of any one state’s definition of marriage without any parameters whatsoever, including plural marriages (as New York recently recognized), open marriages, marriages involving a minor or relative, platonic marriages, or any other new marriage definition that a state chooses to adopt. The Act also effectively deputizes activist groups to sue religious individuals, organizations, and businesses that operate according to their sincerely held religious belief that marriage is between one man and one woman and who act “under color of state law.” Activists will argue that that includes faith-based foster and adoption providers and religious organizations that contract with or are funded by the government.
Landenwich: There is still a lot at stake if the constitutional right to marry is eliminated. The Respect for Marriage Act only provides federal recognition of state-sanctioned marriages. If states are free to ban same-sex marriages, the federal law provides no protection to couples within that state. The possibility raises myriad issues with respect to the legal status of gay families. If the marriages are void, do children lose a legal parent? What about the property rights and privileges that are unique to married couples? The litigation would be endless.
SL: Do you think it will have a cascading effect into other cases involving equal rights? What might some of the fallout look like?
Bursch: We should all be able to agree that it is dangerous when the Supreme Court makes up rights that don’t exist in the Constitution. While some may be happy when the court plays the role of the legislature in cases like Obergefell and Dobbs, they will be unhappy when the court does so in other areas. For example, many have forgotten that in the 1920s, the court made up a “liberty” right in the Fifth Amendment’s Due Process Clause that the court then used to strike down a law setting a minimum wage for women workers. That’s the risk of empowering the Supreme Court to make up rights. The truth is that democracy cannot survive when unelected judges use their authority to create policy rather than leaving that role to the legislative and executive branches.
Landenwich: If Obergefell were to be overturned, I wouldn’t view it as the first domino to fall. Dobbs was the first case to gut the constitutional right to privacy, and it endangers all precedent based on what Justice Louis D. Brandies described as the Constitution’s penumbra—the “right to be let alone.”
Greisen: Given that this Court recently overruled the long-standing precedent of Roe v. Wade, it has already sent a signal that it will not hesitate to re-examine the current interpretation of civil rights laws, and will likely adopt a much more conservative, restrictive view of those rights. This will likely have serious consequences for the meaning of equal rights and due process rights. The current court appears to believe that religious freedom is the most important civil right—to be protected even when it conflicts with other civil rights. And at least to date, this court seems to favor the predominantly Christian beliefs held by the “founding fathers” over a more pluralistic approach.
The court has shown an inclination to grant review in cases even when there is no real controversy at issue, such as the 303 Creative case. In that case, a business owner wants the right to discriminate against the LGBTQ community based on the owner’s first amendment religious beliefs. Although the court claims that it is only reviewing the First Amendment speech rights, the message being sent is that it wants to allow this type of discrimination based on religious beliefs in certain situations.
In Obergefell, the court recognized the history of discrimination suffered by the gay community and held that laws denying gay couples the right to marry “impose stigma and injury of the kind prohibited by our basic charter.” If the current court opens a crack in the dam against such discrimination, I believe it is likely to open the flood gates of other forms of discrimination. The dissenters however believe that only the type of “liberties” recognized by the founding fathers should be recognized. They argue that since there is no evidence that the founders contemplated the right to marriage in the gay community, our society cannot now create this liberty right. But the founders of the Constitution also did not envision the equal rights of women and persons of color. Does that mean we as a society are not allowed to evolve in our thinking of equality?
We should all be very, very concerned.
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