Many gay and lesbian couples who are legally married or considering getting legally married are freaking out, fearing that President Donald Trump’s Supreme Court nominee Amy Coney Barrett may doom their marriages. Some are even rushing their legal marriages in order to get them in before Barrett can strike them down. These fears are largely irrational, however.
Former South Bend, Ind., Mayor Pete Buttigieg led the charge. Buttigieg, a former Democratic presidential candidate who is legally married to another man, told Fox News Sunday that the legality of his marriage is on the line.
“My marriage might depend on what is about to happen in the Senate with regard to this justice. So many issues are on the line,” he said.
Some couples have sought advice on Facebook, seeking to rush their weddings before the Supreme Court can strike down Obergefell v. Hodges (2015), the case that legalized same-sex marriage across America.
“Hiya! My fiance and I are seeking advice from anyone who has eloped instead of a full blown wedding during COVID. It’s scarily looking like her and I will have to, before our date next fall, because of the Supreme Court proceedings,” a woman posted in a private Facebook group. “Are any of you other queer couples contemplating the same thing? What’s the process for a ‘courthouse wedding’?”
Another lesbian posted that she, too, was “worried about the Supreme Court proceedings.”
“If they reverse legal gay marriage, than [sic] it doesn’t matter if you’ve been married for 7 years, 7 days, or are going to be in 7 months,” she added. “I hope we all get to live happily ever after.”
A gay man also posted his concerns about Barrett striking down Obergefell. “We were supposed to get married 10/30/21, but we are worried about the Supreme Court as well. So, we decided that we’re getting married next Sunday, the 25th with immediate family, then celebrating and having a big party on our day next year.”
Will Barrett doom gay marriage?
These fears suggest a misunderstanding of the way the Supreme Court works — or, in Buttigieg’s case, likely a deliberate twisting of the facts.
Amy Coney Barrett has criticized the Obergefell decision because it was a horrendously wrong decision. That does not mean, however, that she will issue a ruling from on high declaring that all gay marriage is illegal. In fact, she suggested Obergefell wasn’t about same-sex marriage but about who decides whether states can define marriage as between one man and one woman.
The Human Rights Campaign (HRC) condemned Barrett for defending the dissenters on Obergefell, linking to a video of Barrett speaking about the case right before the 2016 election. In quoting Barrett’s video, HRC fell into the very trap that Barrett warned against in that video.
Then a Notre Dame law professor, Barrett warned that “voters generally see the headlines in newspapers,” such as “Court decides in favor of same-sex marriage.”
“It leaves voters with the impression that justices and judges are just casting votes based on the policy results that they prefer,” she said.
“On Obergefell, this is the New York Times’ headline problem,” Barrett explained. She lamented that the media and even her students were “presenting it as a vote on the Court for or against same-sex marriage. But that’s not what the opinion was about.”
“What the opinion was about was who gets to decide whether we have same-sex marriage or not, with the majority saying that it was a right guaranteed by the Constitution so therefore states were not free … that states weren’t free to say that marriage had to be between a man and a woman,” the professor added.
“And the dissenters weren’t taking a view. In fact, Chief Justice Roberts’ dissent was very explicit about that. He said those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen. But the dissent’s view was that it wasn’t for the Court to decide, that the Constitution didn’t speak to the question and so that it was a change that should occur through the legislative process and indeed many states were already moving in that direction in making legislative changes,” Barrett concluded.
So what will Amy Coney Barrett do?
If the Senate confirms Amy Coney Barrett, she and the other originalists on the Supreme Court would not pose a threat to same-sex marriage. They would only pose a threat to the idea that it was right for the Court to effectively create a new law as it did in Obergefell v. Hodges.
If Barrett, Roberts, and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch strike down Obergefell, they won’t make same-sex marriage illegal across the U.S. Instead, they will allow the states to make their own laws on same-sex marriage. This means same-sex marriage will still be legal in the states where it was legal in 2015 and it might become illegal in states where it was illegal in 2015.
However, the political demand for states to legalize same-sex marriage will likely be deafening. Even in states that do not legalize gay marriage, it is likely legislatures will have to pass broad forms of civil unions.
When the Supreme Court struck down state laws on same-sex marriage, it precluded legislative compromises on the issue. Justice Thomas rightly warned that the Court’s decision that same-sex marriage is a fundamental constitutional right would intrude on other important rights like religious freedom and free speech. While most Americans support same-sex marriage, millions of Americans still harbor traditional views regarding sexuality and marriage, and they do not have hateful or bigoted reasons for doing so.
State legislatures should balance the interests of free speech, free exercise of religion, and freedom of association with the push for same-sex marriage. State legislators are accountable to the voters who elect them, so voters on both sides of the issue will press for their interests. This system will produce a more representative response, rather than a one-size-fits-all approach from justices who are not accountable to the people.
The Court was wrong to prevent this kind of approach in Obergefell. The Court should reverse Obergefell in order to make marriage laws more representative of the people. Barrett represents a step in this more representative direction and a step away from the kind of judicial fiat these gay and lesbian couples seem to fear.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.