Overturning half a century of Supreme Court precedent, Roe v. Two years after overturning Wade, activists worried that other high court decisions could be in jeopardy are taking their concerns to the polls. California, Colorado and Hawaii will soon allow their residents to vote on ballot measures that remove language from their state constitutions banning same-sex marriage.
The 2015 landmark case is Obergefell v. Hodges The ruling, which guarantees the right of same-sex couples to marry across the country, renders these state bans inapplicable. However, these ballot measures actively seek to protect these marriage rights if Obergefell is overturned.
Paul Smith, a Georgetown law professor, said the high court overturned the landmark 1973 decision in Dobbs v. Jackson Women’s Health, which upheld the 2003 Supreme Court case in Lawrence v. Texas, which struck down the rest of the nation’s anti-sodomy laws. Roe v. Wade’s abortion verdict should serve as a cautionary tale.
“We have an example of how Dobbs can overturn a long-standing precedent. All of a sudden there are these state laws that were sitting there dormant that are coming back to life,” Dobbs said, referring to dozens of states that now have abortion bans after the decision. “These states don’t want same-sex marriage bans to come back to life, so they’re going to do something about it just in case. “
Smith acknowledged the potential concern by pointing Concurring opinion of Justice Clarence Thomas In the 2022 Dobbs decision.
“In future cases, we must revisit all of this Court’s major due process precedents, including Griswold, Lawrence, and Obergefell. Any substantive due process decision is “plainly erroneous,” because we have a duty to “correct the error” established by those precedents. Thomas wrote. (Griswold v. Connecticut is a 1965 Supreme Court decision that established the right of married couples to use contraception.)
Earlier this year, Justice Samuel Alito Obergefell criticized the decision by declining to hear a lower court case involving a controversy involving dismissed jurors who expressed religious concerns about same-sex relationships. Alito wrote that the case “exemplifies the danger” he saw in the 2015 decision.
“That is, Americans who make no secret of their adherence to traditional religious beliefs regarding homosexual behavior will be ‘labeled and treated as believers’ by the government,” he wrote.
The nine-member Supreme Court is the most conservative in a century, with six justices nominated by Republican presidents and three by Democrats. On the eve of the 2024 elections GOP senators are hopeful about the prospect of more conservative justices being confirmed, as well as lower court judges if former President Donald Trump returns to the White House.
Mary Bonauto, one of the attorneys who argued Obergefell before the Supreme Court, said the high court is “a very unpredictable court at this point,” adding that ballot measures like those in California, Colorado and Hawaii are an avenue for states to use. their strength.
“They have been aggressive in overturning precedents,” Bonauto said of the Supreme Court. “They completely restructured how they deal with the powers of government.”
Bonauto, who is now the director of civil rights and legal strategies for GLBTQ Legal Advocates and Defenders, or GLAD, said he doesn’t understand why anyone has a chance to remove the currently unenforceable language banning same-sex marriage in the current climate. “shall not be cast upon it” from the state constitution.
According to the Project for Advancing the Movement, an LGBTQ think tank, 30 states currently have constitutional amendments banning same-sex marriage, and five have laws banning such marriages. An additional five states have prohibitions through statutes, though not through constitutional amendments. In most of these cases, Smith, Roe v. Just as long-dormant state abortion bans took effect after the Wade case was overturned, Obergefell said the now-dormant provisions would become law again if overturned. (there will be constitutional amendments to protect or expand abortion rights On the ballot in 10 states next month).
Without Obergefell, There is federal legislation that largely, but not entirely, protects same-sex marriage rights: the Respect for Marriage Act. The bipartisan measure, signed into law by President Joe Biden in 2022, provides federal protections for same-sex and interracial marriage. Law requires the federal government must recognize these marriages and grant them the full federal benefits of marriage, but it refrains from requiring states to issue marriage licenses in violation of state law.
Bonauto and Smith agree it’s an important piece of legislation, but Bonauto noted there’s always a chance it could be overturned if the balance of power in Congress shifts, and Smith said the measure would leave those in conservative states vulnerable.
“Even if you could go to New York to get married, if the law suddenly said you couldn’t choose your spouse from all the people in our state … that would be a terrible thing. it’s on the books,” Smith said. “I don’t think states want to have something like that — this second-class citizenship — even if there’s a solution through the Respect for Marriage Act.”
Susy Bates, campaign director for Colorado, a bipartisan organization dedicated to protecting the freedom to marry equal marriage rights for same-sex couples, said it would be “really bleak” if Obergefell were overturned and states had to rely on the Respect for Marriage Act.
“Unless we take proactive measures, we cannot guarantee that marriage equality will be preserved in the state,” he said.
It’s a personal issue for LGBTQ couples who have to navigate a time when same-sex marriage isn’t legal or simple.