When it comes to LGBTQ+ rights, you can always count on a few buzzwords to keep us on edge—Obergefell being the most prominent. In case you’re unfamiliar, that’s the 2015 Supreme Court ruling that made same-sex marriage legal across the U.S. It’s a decision that, for many, marked a crucial victory in the fight for equality. But with a conservative-leaning Supreme Court these days, there’s a question that looms like the dark clouds of a dramatic thunderstorm: could Obergefell be on the chopping block?
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Enter Justice Amy Coney Barrett, who recently addressed this very concern in an interview with CBS News. As she’s often seen as a key swing vote, her position on the matter is enough to make anyone feel like they’re reading a legal thriller. And the latest chapter? Well, it’s got us all clutching our rainbow-colored pearls.
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Barrett’s Tease: “It’s Complicated”
Asked by CBS’ Norah O’Donnell whether the Supreme Court might overturn Obergefell, Barrett’s response was—let’s say—about as clear as a foggy morning. She said, “I think people who criticize the court, or who are outside the court, say a lot of different things.”
Well, that’s… not exactly what we were hoping for, right? A little more clarity, please, Justice Barrett! But here’s the kicker: this comment doesn’t exactly scream “We’re coming for your rights.” It’s more of a political waltz—dancing around the issue while giving very little away.
Gene Rossi, a former federal prosecutor, had his own take. In an interview with Newsweek, he read between Barrett’s lines and suggested that, based on her words, she might not be looking to reverse the right to same-sex marriage. So, that’s a glimmer of hope. But let’s not start making wedding plans for the Supreme Court just yet.
Is Barrett Really on Our Side?
Barrett’s positioning has always been a bit of a head-scratcher. Appointed by Trump, she’s got the conservative credentials—yet, she’s occasionally sided with the more moderate justices in the past. So while she may not be waving a rainbow flag, her history suggests she’s not entirely on the anti-LGBTQ+ bandwagon either.
Still, Barrett’s take on the issue of “fundamental rights” is worth noting. In her new book, which hits shelves on September 9th (yes, another justice with a book deal), she describes the “rights to marry” as “fundamental.” She even goes on to explain that certain rights—like marriage, birth control, and raising children—are part of the foundational legal landscape of the U.S.
But, here’s the thing: She’s not really saying how she feels about them, is she? She’s more or less reiterating what the law currently says. It’s like reading the script of a reality show without knowing who wins in the end. We want more than just facts, Barrett—we want action!
Will the Court Do the Right Thing?
While Barrett seems to lean toward following established doctrine, we’re still playing a game of legal Russian roulette. Justice Clarence Thomas, a key player in the conservative wing, has made it crystal clear that he’s itching to revisit Obergefell. In his opinion on the Dobbs case in 2022, Thomas suggested that the Court should reconsider all of its previous rulings on “substantive due process,” including Obergefell.
But as much as Thomas might want to turn back the clock, the truth is that Barrett’s words offer a glimmer of reassurance. It’s not like the Court is charging headfirst into a battle to undo LGBTQ+ rights. Legal experts like Rossi believe that Barrett’s stance might be one of the reasons that Obergefell is unlikely to be overturned.
For now, it looks like a majority of the Court will stick to the rule of law. But, as with all things in politics, things can change faster than you can say “We’ve got the rights to marry, but what about the rights to live?”
The Real Threat: Kim Davis and the Strange Case of the Disgruntled Clerk
Of course, the people most eager to dismantle Obergefell aren’t exactly the heroes of the story. In fact, they’re more like the villains—looking at you, Kim Davis, the Kentucky clerk who became famous for denying marriage licenses to same-sex couples post-Obergefell.
Davis, who once called Obergefell “egregiously wrong,” has petitioned the Court to revisit the case, arguing that it was “deeply damaging.” While some legal observers believe her case will go nowhere (because, let’s be real, Kim Davis lost her job, and public support, years ago), the fact that she’s still trying to drag us back to the past is enough to keep the LGBTQ+ community on its toes.
So, Where Do We Stand?
Barrett’s comments about Obergefell weren’t exactly a rallying cry, but they weren’t a death knell either. She might not be our greatest ally, but it seems she’s not looking to turn back the clock on marriage equality just yet. The real fight will be whether she—and the rest of the Court—maintain the current doctrine, or let the winds of political change steer them toward a more regressive stance.
For now, though, it’s crucial for the LGBTQ+ community to remain vigilant. Yes, we’ve made progress. But history has shown us time and time again that rights can be lost as easily as they’re won. So let’s keep doing what we do best—showing up, speaking out, and staying fabulous while we do it.
And if it all comes to a showdown? At least we know how to throw a protest and a party at the same time.
Source: Newsweek
I suspect the Supreme Court isn’t going to revisit Obergefell v. Hodges. You would have to prove that same-sex couples marrying harms anyone, and there is no evidence of that. Fact is, marriage equality for same-sex couples shouldn’t have taken as long as it did. There was never any constitutional justification for denying law-abiding, taxpaying Gay couples the same right to marry that Straight couples have always taken for granted. What more legal reasoning do you need?
Churches have never been forced to provide weddings for anyone, and it’s a moot point anyway, since the legal benefits of marriage don’t come from the church, they come from the federal government. Procreation and parenting are irrelevant also, since couples do not need to marry to make babies, nor is the ability or even desire to make babies a prerequisite for a marriage license.
According to the Government Accountability Office (GAO) there are 1,138 legal protections, regulations, and responsibilities that pertain specifically to married couples. Much of this has to do with Social Security, inheritance, healthcare, etc. If the government wanted to get out of the marriage business altogether, it would be a legal quagmire.
Some would also suggest that marriage should be left up to individual states, but the point would be moot since a marriage honored in one state is honored across state lines. Marriage is fundamentally a contractual agreement between two adults. Any couple can fly off to Las Vegas for the weekend, get married by an Elvis impersonator, and that marriage is automatically honored back home, thanks to the “Full Faith and Credit” clause.
Maybe I’m being overly optimistic, but I don’t think SCOTUS will reconsider the issue. Frankly, they wouldn’t DARE.
Thank you for your insightful comment. From what I understand, Davis doesn’t have a case here. Before this case some state legislatures have called upon SCOTUS to revisit the case (Idaho’s one) but that doesn’t mean anything either.
It would not be difficult for the conservative majority, particularly if the Stable Genius got another appointment, which isn’t totally improbable, and picked someone even worse than what we have. Clarence Thomas is dying on his seat but not fast enough. Ditto Alito. So any gays who WANT to marry (or who end up divorced but would like the option to marry someone else) are relying on four other conservatives, which is not a comfortable thing. While the congressionally passed law requiring all states to recognize a legal gay marriage exists, as well as the federal recognition for benefits (e.g. taxation), Orange Jesus has also shown how easy it has been for this administration to get away with both ignoring federal rules and regulations, congress, well established doctrine, etc.
I don’t want to waste the time or energy getting into a back and forth and into a lot of details, but I wouldn’t rely on Barrett (or Gorsch or the Beer Lover for the option to still get married in Texas, Arkansas, etc. I suspect in the next five years SCOTUS will rule that there is NO federal right to marry, without removing any existing marriages, and similarly to Roe v. Wade, without removing the right for some states to still allow abortions (in this case, still allow gay marriages), and that the federal agencies, if another administration like the current one is in power, will just make getting certain things (like widower SS benefits) difficult or cumbersome, in spite of the congressional actions of the past few years when Democrats were in control.