TROY, Ala. (TROJANVISION) — In June of 2015, the Supreme Court ruled in Obergefell vs. Hodges that same-sex couples have the same right to marry as straight Americans, requiring all 50 states to perform and recognize same-sex marriages.
According to the latest US census, there are over 6,274 married same-sex couples in Alabama, and over 668,000 nationwide. However, marriage equality might not be guaranteed in the future, as the supreme court has been formally requested to overturn their 2015 decision.
The request comes from Kim Davis, a county clerk from Kentucky who was jailed briefly after refusing to issue marriage licenses to same-sex couples despite a court order. The petition was part of a lawsuit alleging religious discrimination against Davis, and the case has been filed with the Supreme Court. Now it is the justice’s job to decide whether or not they will take the case.
Obergefell uses the same legal reasoning as Roe v Wade, namely the due process clause of the 14th Amendment, which states that no state shall “deprive any person of life, liberty, or property, without due process of law.” Roe vs Wade was overturned in 2022, with sitting Justice Clarence Thomas writing an opinion in the decision that stated that the court should look at Obergefell. However, many legal experts believe that it is unlikely the Supreme Court takes the case.
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“I think it is unlikely the Supreme Court Takes this up,” said Harper Seldin, Senior Staff Attorney for the American Civil Liberties Union’s LGBTQ+ and HIV Project. “Statistically it is unlikely for any certiorari petition to be heard, and I think especially given the consensus around marriage equality at this point.
“I do think that there are some members of the judiciary who want to revisit a lot of precedent that creates equal rights for not just LGBTQ+ Americans, but folks from other groups across the country, but I think it remains low odds.”
In the case that Obergefell is overturned, 26 states have trigger laws, including Alabama’s Amendment 774, written into their constitution that would immediately ban same-sex marriages. Marriage licenses issued before the overturn would still be recognized, but new licenses would not be granted. If enforced, these laws would likely face immediate challenges.
“You see a strong correlation to abortion, where many states had laws on the books that held that if Roe vs. Wade were ever overturned that there would be immediate changes to state law. Some states may have similar provisions related to marriage equality.
“Those changes would be largely prospective, not retrospective. There would be enormous constitutional problems and reliance interests laws that retrospectively attempted to invalidate existing marriages that were otherwise legal when performed. Even with states that had trigger laws related to abortion, there were existing challenges that can be brought under state or federal law. There might be a new wave of litigation there. It would take some time for the legal landscape to sort itself out.”
Although he does not think that Obergefell will be overturned, Seldin said that this challenge is part of a wider movement in the US against LGBTQ+ rights, and that the fight for equality is not yet over.
“This is part of a wide sweeping movement to make life smaller for LGBTQ+ people across our country. This particular petition may not be something to focus on, but certainly broader equality for LGBTQ Americans is something we should be paying attention to.”
In order to add a case to their docket, four of the nine justices must vote to take it, and conservative justices currently hold a 6-3 supermajority. Justice Amy Comey Barrett has previously broke from her fellow conservatives and is considered a key vote, according to Newsweek. She wrote in her new book that the court has held that the right to marry is fundamental.
Forbes reports that the case will be considered at the Justice’s conference on September 29th, and a decision on whether the court will hear it will not come until at least October.
