LGBTQ Activists Quietly Preparing for Nightmare: Supreme Court Undoing Marriage Equality

Jim Obergefell, the lead plaintiff in the Supreme Court's marriage equality case, at home in 2015. Obergefell told BuzzFeed News he fears the court might now unwind marriage equality.

14 july 22

David Mack / buzzfeed news readersupportednews.org              “It's exhausting to even think about trying to do this again in the environment that we're in now,” one LGBTQ campaigner said.

Here’s how the nightmare plays out.

A county clerk refuses to issue a marriage license to two women, citing an old amendment to a state constitution against doing so. Or maybe it’s a far-right state legislator who passes a bill that categorizes marriages between same-sex couples differently from opposite-sex ones. It could even be an order from a state executive allowing anyone in government with a religious objection the right to refuse to work on a same-sex marriage.

Let’s say we’re in Texas, for no other reason than the governor there has already been targeting the LGBTQ community and the state attorney general has expressed an interest in defending a law against sodomy — not to mention the state Republican Party, whose members control every level of government, officially adopting a platform last month that calls homosexuality an "abnormal lifestyle choice.”

The plaintiffs from the LGBTQ community will win the first federal case — that part is assured. But there will be appeals, and Texas sits in the 5th Circuit, the most conservative appellate court in the country, which only shifted further right thanks to the six lifetime appointments made by Donald Trump. One of those men — they’re all men — has spent much of his career working against LGBTQ rights and has called Obergefell v. Hodges, the Supreme Court’s 2015 decision legalizing marriage for same-sex couples, an “abject failure” that “imperils civic peace.” It’s possible he could sit on that court for the next 40 years.

All it takes is one novel case — the right case with the right questions — to intrigue enough justices in the Supreme Court’s conservative supermajority with an appetite to overturn their institution's own precedent.

Then, as supporters of abortion rights will tell you, all bets are off.

“There's a range of ways that it could happen, and what we know about how this far-right political movement operates is that they will kind of go after every method until they find one that they feel like can advance to the courts in the circuits they want to be in,” said Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality. “They have allies at every level of government who are more than willing to pursue that.”

“We are entering a new chapter,” she added.

The ramifications of the Supreme Court’s decision last month in Dobbs v. Jackson Women's Health Organization to overturn almost a half century of reproductive rights guaranteed under Roe v. Wade also landed like a bombshell for LGBTQ campaigners across the country. Interviews with 10 activists and legal strategists, including attorneys who argued the case for marriage equality before the Supreme Court, revealed genuine fears that the court’s demonstrated willingness to revisit and overrule established precedent would soon come for LGBTQ rights.

“I would characterize it as a pretty seismic effect,” Beach-Ferrara said. “It's like living in an area that's prone to earthquakes. You know it could come, but this is a big one.”

“I don't know who across our community is not alarmed,” said Jennifer Pizer, acting chief legal officer at Lambda Legal. “One would need an ocean of optimism to not be alarmed.”

In addition to their distress at the rolling back of abortion access, these campaigners have been particularly shaken by the concurring opinion from Justice Clarence Thomas, who went further than the other five conservatives by openly calling for the court to “correct the error” in legal reasoning that formed the basis in other 14th Amendment cases that guaranteed the rights to contraception, same-sex relations, and marriage equality. Many said they believed Thomas was signaling sympathetic officials across the country to start working to get a case before the court. Two campaigners described it in the same terms: an invitation to mischief.

“He sort of laid out a target and said go for this,” said David Stacy, government affairs director for the Human Rights Campaign, who predicted state legislators would heed Thomas’s call. “We definitely think that could be the starting gun for a more aggressive effort to challenge these things.”

“It was clearly a threat to the rights we fought for,” said Evan Wolfson, founder of Freedom to Marry. “The threat is real.”

In the wake of the Dobbs decision, these activists described conversations with colleagues and lawmakers that have taken on a new urgency as they imagine the fallout from a worst-case scenario. Campaigners who had turned their attention to pushing for marriage equality in other countries are now imagining what a return to the US might look like. Some groups have prepared information packets for LGBTQ people to reassure them their marriages are secure for now, but to warn them that fresh legal attacks are likely. Others have been working with Democrats on the House Judiciary Committee for a public hearing on Thursday billed as “The Threat to Individual Freedoms in a Post-Roe World.”

“I think people in the community had assumed that marriage was off the table — that we have turned the corner on that as a country,” National Center for Lesbian Rights Legal Director Shannon Minter said.

“Believe me: all the LGBTQ legal and advocacy groups are on alert," Minter added.

Some campaigners, like Kendra Johnson with Equality North Carolina, are fielding calls from nervous people in their community, asking what steps they might take to best secure their marriage, shared assets, or parental rights — through a second parent adoption or an updated will or power of attorney, for example — just in case the legal sky falls in.

“We've seen early reports of massive calls to estate planning attorneys, people who are specialized in LGBTQ law, seeing an uptick in consultations,” Johnson said. “I've seen different seminars already being hosted on how to protect your families in light of Roe. So there is great fear and trepidation in the community.”

The threat is so real that two of the people interviewed for this story expressly declined to imagine what kind of case might travel up to the Supreme Court, lest they unintentionally help their opponents achieve their goal.

“The last thing I'm gonna do is speculate about what those cases might look like,” said Mary Bonauto, the civil rights project director at GLBTQ Legal Advocates … Defenders (GLAD) who led oral arguments in Obergefell. “The last thing I want to do is provide anybody with any ideas they don’t already have.”

James Esseks, the director of the ACLU LGBTQ … HIV Project who was also among the attorneys who argued Obergefell, said he believed the conservative justices were emboldened and unfettered. He described the Dobbs decision as a “game changer” for abortion rights and for “the realm of the possible for this court.”

“It's entirely possible that this court rolls back a whole series of rights that the country has taken for granted for a long time,” Esseks said.

For Esseks, even discussing marriage equality once again with a reporter felt somewhat surreal.

“It is hard to go back here,” he said. “It's otherworldly. It’s through the looking glass.”

All the campaigners interviewed for this story wanted to make at least two things clear. First, there is no immediate threat to marriage equality or bans on sodomy laws (which have previously prohibited anal and oral sex between any two consenting adults but which began being used against LGBTQ people in the 1960s).

Second, the legal attacks on marriage equality are not new. From Kentucky county clerk Kim Davis to attempts to carve out religious objections on things like baking wedding cakes or designing wedding websites for same-sex couples, opponents have continued to challenge Obergefell in the courts since it was handed down.

“It's not as if we won marriage and the fight was over, and now the fight is renewed,” Pizer with Lambda Legal said. “They didn't let up for a minute.”

In October 2020, when the Supreme Court declined to hear an appeal from Davis, Justice Thomas took the somewhat rare step of issuing a statement, which Justice Samuel Alito signed on to, saying the Kentucky clerk who refused to give marriage licenses to same-sex couples "may have been one of the first victims" of the court's "cavalier treatment of religion." Thomas decried Obergefell as prioritizing a “novel constitutional right” that they needed to remedy.

“The court has created a problem that only it can fix,” Thomas wrote.

Since then, the court has only become more conservative, with Justice Amy Coney Barrett taking the seat that once belonged to Justice Ruth Bader Ginsburg, creating a 6–3 split in favor of the right that has been left unchanged by the recent appointment of Justice Ketanji Brown Jackson.

In the Dobbs decision, the majority of justices relied on an originalist and historical interpretation of the Constitution in order to decide that, because it does not explicitly mention abortion, the issue should be returned to the states. Alito, who authored the majority opinion, said the decision should only be seen as impacting abortion, as other rights did not concern “potential life.”

But that did not assuage the liberal justices, who warned in their dissent, “No one should be confident that this majority is done with its work.”

LGBTQ advocates agree. They don’t trust conservative justices who described Roe as an important precedent during Senate confirmation hearings only to rule against it when the balance on the court changed — evidence, they believe, that the court is acting with ideological and political imperatives rather than legal or judicial ones.

“To have [Dobbs] arrive as part of a suite of opinions that lack a coherent, constitutional approach, where the results-oriented approach was so transparent, makes the impact that much greater, and it drives more to a conclusion that this is not a court that has any fidelity to giving us constitutional analysis that the country can actually follow,” Pizer said. “It looks more transparently like an exercise of raw power and the consequences be damned.”

In recent months, the political climate has also changed against LGBTQ Americans with shocking and ferocious intensity. Outdated anti-gay language about people preying on children or grooming them has become accepted among prominent ring-wing figures as they launch legislative and political assaults, especially against the transgender community.

Should Obergefell fall and the patchwork of state bans on marriage for same-sex couples suddenly be resurrected, as was the case with so-called abortion trigger laws after Dobbs, the prospect of trying to return to a protracted and expensive campaign to try to flip states one by one in such a toxic political environment is horrifying, said Fran Hutchins, executive director of the Equality Foundation.

“It's exhausting to even think about trying to do this again in the environment that we're in now, in this like post-Trump authoritarian renewal of the culture war moment,” Hutchins said. “I just don't want to. I don't want to do it. I don't think we should have to do it.”

One project activists have once again turned their minds to is the official legislative repeal of the Defense of Marriage Act (DOMA), a federal ban on recognizing marriages for same-sex couples that was ruled unconstitutional by the Supreme Court in 2013. Prior to Dobbs, the repeal of DOMA “was on the nice-to-do list, but not the urgent priority list,” Stacy with the HRC said. Of course, that’s since changed.

One way to achieve that end, Stacy said, would be to pass the Respect for Marriage Act, which was first introduced in Congress in January 2015. That bill would amend DOMA and make clear that the federal government would recognize any married couple’s legal rights, benefits, or protections, even if they lived in a state that outlawed same-sex marriage.

For others, the Dobbs decision and its potential ramifications were the final pushes they needed to advocate for reform of the Supreme Court itself. Lambda Legal, GLAD, the National Center for Lesbian Rights, and the Transgender Law Center all now support adding seats to the Supreme Court and introducing an ethics code for justices in order “to regain a measure of balance and restore confidence in the Court and the rule of law.”

All 10 campaigners interviewed for this story also stressed the importance of people turning out to vote in every election in order to support candidates who believe in LGBTQ equality. That also involves people urging their loved ones and allies to do the same.

“On a personal level, I'm doing what I imagine others are doing, which is — I haven't talked to my family or straight friends about these issues in a long time, and I am back to doing it,” Minter with the National Center for Lesbian Rights said. “All my family members know, ‘Hey, we're concerned that these protections may be under attack and I've asked you to do this before in the past and I'm asking you again now. Vote.’”

History shows civil rights movements sparking backlash from opponents who might enjoy varying degrees of success, and LGBTQ advocates are clear-eyed that their movement is no different. “We know from history that you're never done working. You're never done persuading. You're never done building on what you've done,” Wolfson with Freedom to Marry said.

Still, it makes the prospect of such a major loss no less terrifying, according to Jim Obergefell, the lead plaintiff in the 2015 marriage case. Just hours after the Dobbs decision landed, he told BuzzFeed News he’d be crestfallen if his case might one day too suffer the same fate as Roe.

“But not because it's my name on it and not because I was involved in it. I'd be devastated if it had someone else's name on it and I had nothing to do with it,” Obergefell said. “I'd be devastated because that's the wrong thing for our nation.”