Same Sex Marriage in the US Is Secure

There’s been a lot of concern that the current Supreme Court could overrule the Obergefell decision from 2015, in light of its sharp conservative shift in the ten years since that landmark ruling, and its recent practice of overturning even much longer-standing precedents, most notably Roe v. Wade.  But today the court has decided to leave same-sex marriage alone.

The Supreme Court chooses which cases it hears.  This power is exercised largely in the interest of resolving conflicts among the lower courts’ decisions, but the Court sometimes seems to reach out for the opportunity to reconsider one of its own prior decisions.  Never has this been done so blatantly as when Justice Clarence Thomas, in his concurring opinion in the Dobbs case that overturned Roe, expressly called for the reconsideration of all cases decided on similar grounds, with specific mention of the cases that gave same-sex couples the right to marry and even the case that gave them the right to private intimacy.

In order to hear a case, four of the nine justices must agree to take it — that is what did not occur today.   Such decisions are unsigned, so we don’t know which of the justices took which side.  For example, Chief Justice John Roberts wrote the dissent in the original Obergefell case, taking the view that the Court’s job is to say what the law is and not what it ought to be.  So, today, he might have voted against same-sex marriage, as he did then, or he might have voted in favor of the stability of existing law, as he felt he was doing then.

It is notable that the Court has changed very significantly since Obergefell, with four of the nine seats now occupied by different justices.  Of the four who dissented in Obergefell, Justices Thomas and Roberts, and Justice Samuel Alito, remain on the court.  While their fellow dissenter, Antonin Scalia has passed away, they have been joined by three new conservative justices, all appointed by President Donald Trump: Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.  But even with all this conservative firepower, the Court did not muster four votes to reconsider Obergefell.

That is as as solid a ruling as can possibly be.  There is no guarantee that a future generation of the Court won't reconsider the case.  But that would require an even more backward-looking court than we have today, and it would require a stronger political tide against same-sex marriage than we have today.  Even in the extreme polarization of the Trump era, same-sex marriage has been notably absent from the culture wars.  Many observers doubted that any challenge to Obergefell would be brought.  And now that one has been brought, it has not even been entertained.  That means the Supreme Court thinks there is literally nothing to discuss about the issue.  They simply don’t want to hear it.  And that is really the final word.

FOR MORE ON THIS:

LGBT MARRIAGE RIGHTS IN THE NEW TRUMP ERA, PART 1

LGBT MARRIAGE RIGHTS IN THE NEW TRUMP ERA, PART 2