After Roe, is Supreme Court's Obergefell gay marriage precedent safe?
After Roe and abortion, is Supreme Court's Obergefell gay marriage ruling safe? Will Clarence Thomas end same-sex marriage protections? Not necessarily.
The nation is in crisis. The majority decision in Dobbs v. Jackson Women’s Health Organization is an earthquake that has devastated reproductive rights constitutionally guaranteed for nearly 50 years. The rights of all who may become pregnant are under threat, with poor people of color, undocumented immigrants and people with disabilities most in need of immediate protection and help. At the same time, many Americans now live in fear of what legal aftershocks may follow, including the reversal of same-sex couples’ marriage rights made precedent by the Supreme Court’s 2015 Obergefell decision.
There no doubt will be efforts by those who feel empowered by Dobbs to try to literally prevent same-sex couples from marrying.
Those concerns are understandable. The fight for the freedom to marry in the U.S. had seemed conclusively won. But now we have Justice Clarence Thomas saying in his Roe concurring opinion that his colleagues have "a duty to 'correct the error' established" in precedents including Obergefell. And there no doubt will be efforts by those who feel empowered by Dobbs to try to literally prevent same-sex couples from marrying, in the hope that they will be sued and a case could make its way to this current high court.
And the reality is that, despite having won access to marriage, LGBTQ Americans have been fighting off challenges to their rights for years. Those who want a return to pre-Stonewall days never gave up. State legislators have introduced more than 300 bills this year attacking the rights of transgender and other LGBTQ people, and more than 20 anti-transgender bills have become law in the past three years. Many activists working to deprive pregnant people of control over their own bodies simultaneously have been trying to do the same to transgender people.
But as we reflect on a truly disastrous Supreme Court term, there is a glimmer of light. Because from a purely legal perspective, marriage equality should not be at risk. The court repeatedly explained in its Obergefell decision that the ruling did not rest entirely on liberty cases like Roe, saying it also independently rested on guarantees of equality. Obergefell held that the right of same-sex couples to marry “is derived, too, from that [14th] Amendment’s guarantee of the equal protection of the laws” and that laws restricting that right “abridge central precepts of equality.”
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