Should We Be Worried About Gay Marriage?

implications for obergefell

With the passing of U.S. Supreme Court Justice, Ruth Bader Ginsburg, mere months before the 2020 Presidential Election, many of us sat with bated breath, wondering what this meant for us. After weeks of ignoring the pit in my stomach, I finally worked up the courage to ask some of my friends, “should I be worried about gay marriage?” 

It may be easy for some to forget how new this right is to many Americans. In June of 2015, nearly 46 years to the day after the Stonewall Riots, the Supreme Court ruled that states could no longer ban gay marriage. The ruling passed 5-4, with Justices Roberts, Scalia, Thomas, and Alito stating their dissent.

At that time I had only recently come out of the closet, and did not believe I’d see marriage equality in my lifetime. I assumed I would need to find a state that had independently ruled in favor of marriage equality if I ever planned to get married at all, knowing the complications and limitations that would come with a federally illegitimate union. So, when the Supreme Court ruled in favor of Obergefell, I was thrilled but apprehensive.

Many headlines in the following weeks would prove my apprehension justified. An attorney in Texas called the ruling “lawless,” and he offered free legal defense to state workers who refused to marry same-sex couples on religious grounds. Mike Huckabee called the ruling, “unconstitutional judicious tyranny,” and a parade of petty marriage refusals made their way into the news from Texas, Alabama, and Kentucky. Alabama notably called upon a state law passed in 1961 that was created to preserve racial segregation, making it optional for county clerks to issue marriage licenses.

However, eventually those headlines began to fade. Change came slowly, and then all at once. Disney Channel aired its first gay couple, commercials began to include occasional token gay parents, and I watched as lesbians, young and old, got married, bought homes together, casually shared health insurance plans, and raised children–all for the first time.

I was getting drinks with my girlfriend when we got the news about Justice Ginsburg. She said, “oh no, this is bad,” and without explaining showed me the headline on her phone screen. The first thing out of my mouth was, “but so close to the election,” which immediately tasted sour to me. How broken was a system that relied on the physical health of an 87 year-old woman to uphold the civil rights of its constituents? Her death, falling symbolically on Rosh Hashanah, left many of us with a sense of loss and confusion. What did this mean for Roe v. Wade? What did this mean for Obergefell v. Hodges?

I moved to a new city and started a new job to live with my girlfriend in the middle of a pandemic. Between unpacking, organizing, learning to navigate a new place and a new position, I barely had time to process what was happening in the broader world. It wasn’t until I saw a week-long event being held by a local affirming church titled “Pop-Up Elopements During Supreme Court Nomination Hearings.” The description explained that they would be held on the dates of the confirmation hearings for Amy Coney Barett in front of City Hall with several officiants, a photographer, and witnesses. This would be both an act of protest and one of planfulness. The subtext reading: get married before you can’t.

After seeing that event, I could no longer  ignore the implications of the death of Justice Ginsburg, and the false sense of security I’d come to enjoy began to unravel. I slept poorly that night, and the next morning I posed the question to my friends, “should I be worried about gay marriage?”

I received a number of responses, some a little too optimistic, and others a bit despairing. From every perspective many good points were made. In order for Obergefell v. Hodges to be overturned, a new case would need to be heard. A same-sex couple would need to be denied a marriage license, sue, then move the case all the way to the Supreme Court where the justices would need to agree to even hear the case.

Everyone in the conversation was in agreement on these facts. The division in perspective occurred at whether or not the Supreme Court would even hear the case. The optimists felt convinced that the shift in public opinion and the resistance to hearing what would essentially be the same case twice, would discourage the sitting justices from hearing the case. Their perspective was that this was put to bed in June of 2015 and would not be high priority.

I wanted very badly to believe this. I felt this was a reasonable and level-headed approach to the whole issue, and as someone a little prone to hysterics, I felt inclined to trust this information. Unfortunately, Justices Thomas and Alito made statements Monday that indicate that they haven’t exactly put Obergefell v. Hodges to bed as we may have hoped. The court decided not to hear the case of Kim Davis, the Kentucky county clerk who was jailed after declining to issue marriage licenses to same-sex couples. Thomas and Alito agreed her case should not be heard, but not on the basis that her actions violated the 14th Amendment. Rather, it was because her case was not clear cut enough, not a good enough example of the threat that gay marriage poses to freedom of religion. Thomas referred to Davis as a “victim” in what he called the court’s “cavalier treatment of religion.”

While I felt somewhat reassured by the line, “a case would have to make it all the way to the Supreme Court again,” I was reminded that Kim Davis was only just denied the opportunity to appeal her case. In response Thomas urged his colleagues to revisit Obergefell v. Hodges again. The underlying message being: we can’t overturn Obergefell using Kim Davis’s case, but give us a better one and we will.

While many may feel the shift in public opinion has rendered our right to marriage protected, it’s important to note that “Defending Marriage Against an Activist Judiciary” has been an official item on the Republican Party’s platform since 2016. Many may further argue that if it’s been on the platform since 2016, we have no reason to believe republicans will prioritize and take action on this item now. But that’s not true. We have a very significant reason to believe they will: Amy Coney Barrett. If Barrett were to replace Ginsburg, Republican appointees would outnumber Democratic ones by a 6-to-3 margin. There is no doubt that if a strong enough case makes its way to the Supreme Court that Obergefell will be easily overturned.

After conversations with people far smarter than I, reviewing both the pessimist’s and optimist’s perspectives, I still haven’t settled on an answer to my question. Should I be worried about gay marriage? The truth is, I don’t know. The murky waters of American politics make it hard to see the direction we’re headed. President Trump tends to talk in circles, saying the same self-aggrandizing statements in new ways over and over again, without ever answering our questions, the answers to which have huge implications for many of us.

Without any real answers, I’m not going to immediately rush into a marriage with my partner on the steps of City Hall. I still have hope that I can follow through on my plan to finish graduate school and have the beautiful, rustic butch/femme wedding of my dreams. But I’ve been having some hard conversations in my apartment this week about how far things have to go before we’re willing to elope. I can’t help but feel a deep sense of resentment that I was offered this false sense of security and an even deeper feeling of embarrassment that I fell for it in the kind of country that rests its civil rights on the shoulders of one 87 year-old woman.