If Same-Sex Marriage is Overturned
An explainer for the worst case scenario.
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Folks, I very rarely publish two pieces in one day, so I hope you’ll forgive the second intrusion in your inboxes and understand the immediacy.
Many of you have probably seen the news from this morning that the Supreme Court may take up a challenge to Obergefell v. Hodges, the SCOTUS ruling that legalized same-sex marriage ten years ago.
The challenge is being brought by Kim Davis, a former Kentucky county clerk and religious extremist who refused to certify same-sex marriages in the wake of the Obergefell ruling and was jailed for six days back in 2015.
She was eventually ordered by a jury to pay $100,000 in emotional damages and $260,000 to a same-sex couple who sued her over being denied a marriage license.
I wish I could tell you that the Supreme Court is going to decline to hear this challenge, but I honestly don’t know. I wish I could tell you that even if the Supreme Court decides to hear the challenge, it will fail and Obergefell will be upheld, but I really, truly, honestly don’t know.
My gut feeling is that Obergefell is in trouble. I hope my gut is wrong.
The extremist conservatives on this Supreme Court have routinely disregarded precedents and common sense, and it would be foolish of me to say with any degree of confidence that same-sex marriage and interracial marriage will be safe at the national level.
So, instead, I’m going to tell you what will happen if Obergefell is overturned and why Pres. Biden and Sen. Tammy Baldwin (D-WI) deserve enormous credit for creating a safety net back in 2022 just in case a scenario like this would come to pass.
When the Respect for Marriage Act was passed and signed into law that year, many of us—myself included—saw it as a sign that the lifeboats were being prepped in case the ship went down.
It did not “codify” same-sex marriage and interracial marriage in federal law—as was often reported by oblivious journalists who couldn’t take five damn minutes to educate themselves on the bill—but it did cement certain protections for same-sex and interracial marriages.
Here's what that law specifically does and how it would look for same-sex marriage licenses nationwide:
1. It requires the federal government to recognize same-sex marriage licenses. If Obergefell should fall, the federal government would still protect those marriages in every aspect under its purview (everything from Social Security benefits to military families).
2. It requires states refusing to issue same-sex marriage licenses to still recognize those licenses issued in states where legal.
Basically, a same-sex marriage license issued in California would be honored in Texas, even if Obergefell is overturned and Texas bans same-sex marriage licenses from being issued within its jurisdiction.
Obviously, that baseline reciprocity is a good thing because it’ll safeguard protections for millions of LGBTQ families in our country.
However, it’s also problematic for a few reasons, one of the more obvious of which is that not every family living in an anti-LGBTQ state can travel to a pro-LGBTQ state to procure a marriage license.
You know those periodic reminders about why people can’t simply move out of hurricane zones because it costs money to move and restart somewhere else?
Same principle here. Many folks can’t afford this nonsense. Imagine, for example, your partner is having a horrific health scare and you need to expedite your marriage to ensure the protections and rights that come with it.
Currently, the constitutions of 26 states have bans on same-sex marriage and any other types of same-sex unions, and 30 total states have statutes with the same effect.
These are all non-enforceable because Obergefell is currently the law of the land.
But if Obergefell is overturned, all of those state constitutional and statutory bans would be enforceable.
Here, I’ll make it a bit easier with a visual I shamelessly stole from Wikipedia:
Do you see all that red and pink?
Those are various degrees of statutory bans (some just marriages, some both marriages and civil unions, and some go further than that). Everyone living in those parts of the country will be unable to procure a same-sex marriage license where they reside if Obergefell is overturned.
But it gets more complicated because now we have to factor-in the state constitutional bans. Here’s another map stolen from Wikipedia:
See all that red and black?
Those constitutional bans would go into effect if Obergefell is overturned. California and Nevada are dark blue (not black), meaning that they explicitly protect same-sex marriages in their constitutions. Michigan and Virginia are black because they still have constitutional bans on same-sex marriage in place.
Despite all the pink and red and black on those maps, a same-sex marriage license issued in a state where it would be legal in an Obergefell-less world would be honored in every state where it would be freshly illegal to issue such licenses.
That’s why the Respect for Marriage Act is so important. That’s why Sen. Tammy Baldwin is a legislative genius for cobbling together a bipartisan majority to get that bill passed with Pres. Biden’s robust support back in 2022.
No, same-sex marriage will not entirely dissolve in the United States if Obergefell should be overturned, but it will be much, much more difficult for millions of LGBTQ families if that happens.
I hope it isn’t overturned. I hope the extremist majority of the Supreme Court comes to their senses and realizes how foolish it would be to needlessly and cruelly strip marriage rights from same-sex couples and their families.
But if that should come to pass, there is something of a safety net in place.
In the meantime, every state with Democratic leadership that doesn’t currently have constitutional or statutory support for same-sex marriage and interracial marriage needs to immediately get on that.
Don’t trust this Supreme Court to do the right thing. Prepare for the worst and be delightfully surprised if the worst doesn’t happen.
As I've posted on some social media and local LGBTQ+ communities, as long as my Maine Notary Public Commission and Marriage Officiant license exist, I will waive my fee for any gay couple who wants to get married and is willing to come to me in Boothbay Harbor, Maine. I'm 82 years old, partially disabled, the proud mother, grandmother, and great-grandmother of queer offspring, some married with children, some "living in sin" (S.I.N. - Self-Inflicted Nonsense). Love shall prevail!
I'll start by saying that I'm a better person because of my friendship with Charlotte Clymer. But a brilliant take. And let's face it, the sooner we recognize that they're coming for us, and start standing up and taking actions, the better we will be. This is not just about our marriages. This is about all of our rights as humans, our rights as citizens, our rights as humans. 14 years ago this September, I had the best day of my life. It was when I was married to my husband before friends and family. None of us had ever witnessed two men marrying one another, so the tears were flowing. Because we could. Because I had the right in the state of CT to do what had been droned into me since I was a child: You meet a woman and get married. For those who talk about grooming, let me tell you, I was being indoctrinated into thinking that my only chance for happiness was to be married in a way that was societally accepted, but was against who I was. The evil of these people.