Last week’s Supreme Court rulings show just how fragile marriage equality may be
The Supreme Court wrapped up its term last week, and true to form, the right-wing majority went out of its way to prove that they think their job is to give Donald Trump and Christian nationalists as much power as possible. That the Court’s radical decisions coincided with the tenth anniversary of the Obergefell ruling, which legalized marriage equality, should give one pause as to where the future of marriage may be headed.
In perhaps the most shocking ruling, the six conservative justices did away with the national injunctions prohibiting Trump from ignoring birthright citizenship.The fact that birthright citizenship is as solid a constitutional construct as can be imagined – it has more than 100 years of rulings to support it – didn’t figure into the justices’ reasoning. They looked at a technical issue, which is whether district courts can make a decision that applies nationwide, and decided the courts cannot.
Birthright citizenship is such a basic issue that the ruling blessed Trump‘s lawlessness. If Trump decided that slavery wasn’t, in fact, illegal, courts couldn’t issue a nationwide injunction saying otherwise. Instead, cases would have to wend their way through the system before they would end up at the Supreme Court. The conservatives also may be hinting that they’re okay with doing away with birthright citizenship, which would be an extreme act.
What makes the ruling all the more reprehensible is that when Joe Biden was president, he was subjected to multiple nationwide injunctions from Trump-appointed judges. The Supreme Court didn’t have any issue with those injunctions. It was only when Trump resumed office that the justices suddenly found the problem to be a burden.
In another ruling, the majority decided that parents can pull their children from school rather than let them learn that LGBTQ+ people exist by reading some sweet storybooks. “The storybooks unmistakably convey a particular viewpoint about same-sex marriage and gender,” Justice Samuel Alito wrote for the majority.
This is just the most recent example of the right-wing justices favoring the rights of religious conservatives above anyone else’s. The fact that Alito wrote the decision is not surprising. The decision is laced with thinly disguised homophobia. Alito frets about “young impressionable children,” as if they might be recruited to be LGBTQ+. He talks about people who are “apparently” transgender, dismissing their reality. He shudders at the idea that the books present same-sex weddings as “cause for celebration.”
As a reminder, Alito has made it abundantly clear that he would like nothing more than to overturn Obergefell. Justice Clarence Thomas would like to as well.
There’s a lot of anxiety about the stability of marriage equality. Jim Obergefell, whose effort to have his marriage recognized after his husband John Arthur died from ALS led to the case and ruling, has said “the Supreme Court could very well overturn” marriage equality.
For many experts, that seems unlikely. GLAD Law’s Mary Bonauto, who represented Obergefell before the Supreme Court, says the Court doesn’t have the appetite for such a drastic move.
“The Court understands this issue is about the foundational importance of family,” she told The New York Times. “That’s why it has described marriage as ‘the most important relation in life,’ a ‘basic liberty,’ essential to ‘the pursuit of happiness.’” A lot of others agree.
However, these are not normal times. And this is definitely not a normal Court. It has already demonstrated its disdain for precedent and public opinion in overturning a woman’s right to choose to have an abortion. Moreover, this term, the conservative majority has gone out of its way to pave the way for the kind of changes that Project 2025 has put in writing. That includes enshrining marriage as only being between a man and a woman – the very thing that the majority in last week’s ruling was letting parents ensure their children would experience.
Perhaps overturning Obergefell outright would be too much (although that’s a gamble). But the justices could erode it. They could let the Kim Davises of the country opt out of providing marriage licenses on religious freedom grounds, thus creating marriage deserts. Davis is appealing her case up to the Supreme Court, and her attorney, Mat Staver of the anti-LGBTQ+ legal group Liberty Counsel, would like nothing more than to land a blow against marriage equality.
The current majority on the Court has made it clear that it’s folly to try to argue with them about accepted legal precepts. They pretty much figure out what their ideological interests are and then justify them with legal word salad. Logically, there is no reason for the Court to revisit Obergefell. But in the Trump era, logic is in short supply, while raw power is all the rage.