Editor’s Note: Tim Holbrook is Asa Griggs Candler Professor of Law at Emory University School of Law. He is a frequent commentator on LGBTQ rights. The views expressed here are his own. Read more opinion on CNN.
The nomination of Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg has generated discussion about the future of Roe v. Wade, the case in which the Supreme Court legalized abortion across the country. Such conversations are not surprising given the role that Justice Ginsburg played in advancing women’s rights and Judge Barrett’s writings as a judge and a law professor.
Roe is not the only precedent at risk, however. Marriage equality may be too. In Obergefell v. Hodges, the Supreme Court rejected attempts to limit marriage to opposite sex couples and embraced marriage equality, ensuring that persons of any sexual orientation or gender identity could marry the spouse of their choice.
A statement issued on Monday by Justice Clarence Thomas, joined by Justice Samuel Alito, made the threat clear. The justices issued the statement after the Supreme Court declined to take the case of Davis v. Ermold. Kim Davis became famous when, as a county clerk in Kentucky in 2015, she refused to issue marriage certificates to same-sex couples, citing her religious beliefs that marriage is only between a woman and a man. She was jailed after refusing to issue the licenses; the high court chose not to hear an appeal in her case.
Even though Justices Thomas and Alito agreed the Court should not take Davis’s case, they elaborated on how they believe the Obergefell decision is a threat to religious liberties. They wrote ominously that “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.” This language makes clear that the vitality of Obergefell is in doubt.
How can that be? President Donald Trump has called marriage equality “settled.” The President, however, does not get to make that call. As our judiciary is independent, the Supreme Court ultimately makes that call if an appropriate case comes through the courts challenging marriage equality. Justice Thomas’s and Alito’s words send a signal to state legislatures to challenge Obergefell, at least on religious liberty grounds.
Such efforts could be successful. Obergefell was a 5-4 decision, and two of the justices in the majority – Ginsburg and Obergefell’s author Justice Anthony Kennedy, who retired in 2018 – are no longer on the Court. Even the most optimistic takes on the current justices show the vulnerability of marriage equality.
There’s a great deal of uncertainty here. Although the Chief Justice John Roberts dissented in Obergefell, he could vote to uphold it. The Chief Justice may be concerned about his legacy. Reversing a decision so quickly after it was decided could make the Court look like a political actor, a point of concern Roberts has expressed before. The Chief Justice took this precise step in June Medical Services v. Russo, where he concurred in striking down a state law restricting abortions, even though he had dissented in a case previously that presented the same issue. He could make the same move with Obergefell.
But what about Justice Gorsuch? He wrote a decision this summer that extended a landmark civil rights law to prohibit discrimination on the basis of sexual orientation and gender identity. Would he be amenable to protecting marriage equality?
I’m not optimistic. In extending workplace protections to LGBTQ persons, the Court was performing an act of statutory interpretation, a very different issue than interpreting the Constitution to find a constitutional right to marriage equality.
Justice Gorsuch is in the mold of the late Justice Scalia in his approach to constitutional interpretation, using an originalist viewpoint – asking himself what terms would mean to the Founders of the Constitution or, for later amendments, the adopters of those amendments. I imagine he would be quite wary of finding same-sex marriage was enshrined in the Constitution by the Founders or adopters of amendments in the 1800s.
That leaves the impact of Judge Barrett, assuming she is confirmed. She has written little on LGBTQ rights as either an academic or as a judge. She did sign a letter to Catholic bishops that included language limiting marriage as an “indissoluble commitment of a man and a woman.” But she signed that letter in her personal capacity. That language would also suggest she views divorce as inappropriate, yet I doubt she would argue that divorces should be prohibited.
Judge Barrett views herself as an originalist and a textualist (an approach emphasizing the text of the statute as written and eschewing reliance on legislative history). Given these approaches to the law, she would likely be hostile to marriage equality. She has also written about the role of the Supreme Court in revisiting its earlier precedent, leading many to believe she would be willing to revisit earlier decisions. That writing is driving concerns about whether she would overrule Roe. It should also make the LGBTQ community nervous about Obergefell. It certainly will be a topic at her confirmation hearing, though prospective justices usually decline to tip their hand on how they would rule in specific cases.
Thus, even if the Chief Justice were to uphold Obergefell, the votes could still be there, 5-4, to overrule it, with Justices Breyer, Kagan, and Sotomayor joining the Chief Justice in dissent.
Does this mean marriage equality will be overruled? It may not. Instead, the justices, with Justice Thomas’s and Alito’s statement as a preview, may carve out sweeping religious liberty exceptions to marriage equality. The Court may also chip away at attendant rights, like adoption and allowing same-sex couples to be named as parents on birth certificates. It also would be problematic, if not impossible, for the Court to eliminate existing marriages between same-sex couples. That may stay the Court’s hand to some extent.
Nevertheless, marriage equality may be at risk. Given that a majority in the US believes that LGBTQ persons should be able to marry, hopefully the Court will not overrule Obergefell in the future. But I’m more than a little worried.