Two years after the Supreme Court overturned Roe v. Wade, abolishing half a century of precedent, activists worried that other Supreme Court decisions could be in jeopardy are taking their concerns to the ballot box. California, Colorado and Hawaii will soon allow their residents to vote on ballot measures that would remove language from their state constitutions banning same-sex marriage.
The landmark 2015 ruling Obergefell v. Hodges, which guarantees same-sex couples nationwide the right to marry, makes these state bans unenforceable. However, these ballot measures are intended to proactively protect these marital rights if Obergefell is ever overturned.
Paul Smith, a Georgetown law professor who argued the landmark 2003 case Lawrence v. Texas, which struck down the nation’s remaining anti-sodomy laws, said the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, which upheld the landmark 1973 nullified. The Roe v. Wade abortion ruling should serve as a cautionary tale.
“We’ve had the example of how Dobbs can break a long-standing precedent. Suddenly there are state laws that were dormant there that came back to life,” he said, referring to the dozens of states that now have abortion bans after the Dobbs decision. “These states don’t want their same-sex marriage ban to come back to life, so they’re going to do something about it, just in case.”
Smith confirmed the potential concerns and pointed to Judge Clarence Thomas’ concurring opinion in the 2022 Dobbs decision.
“In future cases, we must reconsider all of this Court’s substantive precedents, including Griswold, Lawrence, and Obergefell. Because every substantive due process decision is “demonstrably wrong,” we have a duty to “correct the error” identified in 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 renewed his criticism of the Obergefell ruling by refusing to hear a lower court hearing on a dispute over dismissed jurors who had raised religious concerns about same-sex relationships. Alito wrote that the case is “an example of the danger” he sees in the 2015 ruling.
“Namely, that Americans who do not conceal their adherence to traditional religious beliefs about homosexual behavior will be ‘labeled as bigots and treated as such’ by the government,” he wrote.
The nine-member Supreme Court is the most conservative in a century; six justices were nominated by Republican presidents and three by Democrats. Ahead of the 2024 elections, Republican senators are hopeful about the prospect of confirming even more conservative judges and 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 Supreme Court is “a very unpredictable court right now” and added that ballot measures like those in California, Colorado and Hawaii are one way states can leverage of voting rights. their power.
“They have been aggressive in overturning precedents,” Bonauto said of the Supreme Court. “They have completely remade the way they handle the powers of government.”
Bonauto, now senior director of civil rights and legal strategies at GLBTQ Legal Advocates and Defenders, or GLAD, said that under the current circumstances she does not understand why anyone has the opportunity to remove currently unenforceable language banning same-sex marriage from their state constitution’ wouldn’t jump on it’.
Currently, 30 states have constitutional amendments banning same-sex marriage, and five states also have statutes banning such marriages, according to the Movement Advancement Project, an LGBTQ think tank. Another five states have banned statutes, but not constitutional amendments. In most of these cases, Smith said, the currently dormant provisions would become law again if Obergefell were overturned, just as long-dormant state abortion bans took effect after Roe v. Wade was struck down (constitutional amendments to protect or expand abortion rights will do that). will be on the ballot in 10 states next month).
Without Obergefell, there is federal legislation that would keep same-sex marriage rights largely, but not entirely, intact: the Respect for Marriage Act. The bipartisan measure, which was signed into law by President Joe Biden in 2022, guarantees federal protections for same-sex and interracial marriages. The law requires the federal government to recognize these marriages and guarantee them the full federal benefits of marriage, but it does not require states to issue marriage licenses that conflict with state laws.
Bonauto and Smith agree it is an important piece of legislation, but Bonauto noted there is always a chance it could be repealed if the balance of power in Congress shifts. Smith said the measure would leave those in conservative states vulnerable.
“Even if you can travel to New York to get married, to suddenly have a provision in the law that says you, of all the people in our state, don’t get to choose your partner… that would be a terrible thing to do. have on the books,” Smith said. “I don’t think states want to restore that kind of thing – that second-class citizenship – even if there is a solution through the Respect for Marriage Act.”
Susy Bates, campaign director for Freedom to Marry Colorado, a bipartisan organization dedicated to preserving equal marriage rights for same-sex couples, said that if Obergefell were overturned and states had to rely on the Respect for Marriage Act, it would be “really murky.” would be’. .”
“Unless we take proactive steps, we cannot guarantee that marriage equality is protected in the state,” she said.
It’s a personal issue for LGBTQ couples who had to deal with a time when same-sex marriage wasn’t legal or easy.
Before Anna and Fran Simon became Colorado’s first same-sex couple to legally marry in 2014, Anna was fingerprinted and had to undergo an FBI background check to change her last name. To get both names on their son’s birth certificate, the hurdle was even higher: they hired a lawyer and petitioned the judge. It’s a process they want same-sex couples to never have to do.
“We had to gather all the rights and protections we could, so we first paid thousands of dollars to lawyers.” Fran said.
Anna added: “Having the legal recognition was extremely powerful in feeling like a full citizen. That very real protection was psychologically extremely important, not only for us, but also for our son.”
Recent Gallup polls indicate that 69 percent of Americans believe marriage between same-sex couples should be legal, and almost as many say gay or lesbian relationships are morally acceptable, at 64 percent. Support for same-sex relationships has increased dramatically in recent decades: When Gallup first polled the issue in 1996, only 27% of Americans thought these unions should be legal.
Supporters of the proposal in Colorado say they are pleasantly surprised that they have not encountered significant organized opposition to the ballot measure.
“Our largest party registration is No Party, or Independent,” Bates said. “I think Coloradans are really used to dealing with issues specifically when it comes to individual freedoms and individual rights, and really analyzing what that means for people’s everyday lives.”
As Colorado’s ballot measure was being considered in the state Legislature, Republican state Rep. Scott Bottoms, an opponent of the proposal, invoked religion in his nearly eight-minute speech, saying same-sex marriage was “in direct conflict with is with God’s laws.”
Bottoms then posted a video of his comments about X, telling his followers: “The Democrats want to abolish the idea of marriage between a man and a woman. You will have the opportunity to vote against this initiative in November.”
Bottoms did not respond to NBC News’ request for additional comment on his opposition to the proposal.
Despite all indications that the ballot measures will pass in all three states, Anna and Fran Simon say the fight for equal rights is far from over.
“We have seen how our lives as LGBTQ individuals have been used as a political football,” Anna said.
Fran added: “We feel like we always have to fight constantly to keep the protections and rights we have worked so hard for.”
The Supreme Court currently has no cases on its docket that could threaten Obergefell’s precedent, but Smith pointed to the case of a former Kentucky county clerk, Kim Davis, who has been on appeal for nine years. It first made national headlines in 2015, when Davis refused to issue marriage licenses to several same-sex couples based on her religious beliefs.
Conservative legal group Liberty Counsel recently filed a brief with the 6th U.S. Circuit Court of Appeals in Cincinnati. The group, which has a long history of opposing LGBTQ rights in the legal system, is led by Mat Staver, who explained the intent of the lawsuit in a press release: “This case has the potential to overturn Obergefell v. Hodges and extend the same religious rights. freedom protection beyond Kentucky for the entire nation.
“It wouldn’t be at all surprising that we would see a petition for review before the Supreme Court in the coming months,” Smith said. “I don’t predict that the court would be very enthusiastic about it right now – they have other things to think about, but – but it is certainly not impossible, and so there is every reason for states to disagree with this same-sex marriage . prohibits removing them from the books while it is still possible.”
This article was originally published on NBCNews.com
