Take a Deep Breath — Marriage Equality is Probably Here to Stay

Legal experts say the Supreme Court is unlikely to overturn its landmark Obergefell v. Hodges decision anytime soon.

This story was originally reported by Kate Sosin of The 19th. Meet Kate and read more of their reporting on gender, politics and policy.

There’s good news for LGBTQ+ married couples who want to stay married: The Supreme Court is not likely to overturn marriage equality any time soon. 

Alarms were raised recently by an appeal to the Supreme Court by Kim Davis, a former Kentucky county clerk who spent six days in jail and paid hundreds of thousands of dollars in fines for refusing to issue same-sex couples licenses in her state. Davis has been on a mission to topple marriage equality since it became law in the Supreme Court’s landmark Obergefell v. Hodges decision in 2015. 

Legal experts say that Davis’ punishment has given her some legal standing to sue — but that it’s still shaky. The Supreme Court is unlikely to take up her case, they say. And even if they did, the justices probably wouldn’t rule in her favor. 

Lambda Legal’s interim legal director of litigation, Karen Loewy, said queer couples should feel secure in the future of marriage equality. Lambda Legal, the nation’s largest LGBTQ+ legal advocacy organization, was among those that secured marriage rights for same-sex couples a decade ago. 

Loewy pointed to what happened five years ago, when Davis asked the Supreme Court to hear the same case. “Even then, Justice [Samuel] Alito, who we all know would love nothing more than to reverse Obergefell, was like, ‘This is not a vehicle for that,’” Loewy said. 

Ezra Ishmael Young, a lawyer and constitutional law professor in New York, agrees. 

“It is highly unlikely they will want to touch her case for lots of reasons,” Young said. “The vast majority of cases brought to the Supreme Court are long shots.”

Loewy acknowledges that LGBTQ+ people are reasonably scared. Anti-LGBTQ+ rhetoric and policy have animated the GOP in recent years. Davis’ petition even caught the attention of former Secretary of State Hillary Clinton, who warned that the Supreme Court would overturn marriage equality like it had a federal right to abortion. 

“Everything feels like an existential threat at the moment,” Loewy said.

But the law has not changed, and neither have the arguments for overturning marriage equality. 

“It’s not Kim Davis’ case that has gotten better,” Loewy said. 

Young said that he is confident that the legal standing for Obergefell remains sturdy and that courts are not ruling in ways that signal they would overturn the precedent.

“There’s no state or federal court saying trans people or gay people can’t have law licenses,” he said. And courts are not enforcing bathroom bans in their own buildings, he noted.

“One of the last … stops of the judiciary, pushing back is like, ‘We’re not going to accept those [discriminatory] rules,’” said Young. “‘We have to rule on your cases fairly, but we’re going to govern ourselves differently.’ And that’s actually very serious.”

In other words, courts themselves might be upholding anti-LGBTQ+ laws in deference to other branches of government, said Young. But when it comes to things they control, like law licenses and their own bathroom facilities, they are not directly discriminating.

But even in the unlikely event that the court moves to strike down Obergefell, LGBTQ+ married couples will remain married.

While the 2022 Respect for Marriage Act doesn’t codify same-sex marriage, it does require that states recognize marriages made in other states. It also protects marriages that have already been performed. That means that queer married couples’ marriages cannot be legally dissolved. And couples who want to marry in the future will still be able to do so in the 15 states (and Washington, D.C.) that don’t have same-sex marriage bans on the books. 

In the most practical sense, the overturning of Obergefell would mean stripping away the rights of many LGBTQ+ couples to marry in their own states.  And it would also send a message about the state of the nation and the values of its people.

If it happens, “I think we’ll see a lot of emboldened discrimination,” Loewy said.

While such a reality would be inconvenient and deeply discriminatory, LGBTQ+ people would still retain marriage rights. And the Supreme Court would be hard pressed to find the Respect for Marriage Act unconstitutional, Young noted.

“The Respect for Marriage Act is what we call a poison pill,” he said. “It’s the only statute that’s federal-wide that prohibits polygamy.” 

The bill was written so that if it was struck down, the Supreme Court would be greenlighting polygamy, something most justices would not be keen to do. And they would not be able to chip away pieces of the Respect for Marriage Act easily either, Young added.

“Marriage is kind of like an on/off switch,” he said. “You either have it or you don’t.”

Further, if Obergefell were overturned, queer couples would still be entitled to federal rights because those were not won under the Obergefell decision. They were secured under the 2013 decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. 

Young said the marriage issue, for now, is a distraction from the increased immigration enforcement by the federal government that’s led to thousands of arrests and deportations happening right now in cities across the country.

“The White, non-immigrant, LGBT community need[s] to understand this government is in the process of dehumanizing others, and we need to be vigilant about that,” Young said.  “Because if they get away with it, then we could be on the chopping block next. We need to stop fixating on marriage and pay attention to the goons in the cars picking people off the streets.”