by Peggy Tomsic, James Magleby, and Shannon Minter
Last week, President Trump announced his nomination of Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy. Justice Kennedy authored the Supreme Court’s marriage equality decision in Obergefell v. Hodges and several other landmark LGBT rights cases. Although Kennedy voted with the conservative justices on almost all other issues, when it came to cases involving LGBT people, he was a consistently strong and eloquent voice for their equal freedom and dignity. Given Justice Kennedy’s pivotal role in protecting the LGBT community, his departure has raised questions about whether a newly reconstituted Court might do the unthinkable — reverse its 2015 ruling that same-sex couples have a constitutionally protected right to marry and invite hostile states to bar them from marriage once again. While not impossible, any such attempt to turn back the clock by expressly reversing Obergefell is unlikely.
To be sure, if he is confirmed, Judge Kavanaugh will be no friend to LGBT people or other vulnerable groups. According to a recent study by political scientist Lee Epstein, Kavanaugh’s record tilts farther to the right than every current justice other than Clarence Thomas. Kavanaugh has ruled consistently against plaintiffs in civil rights cases. Some of our nation’s most extreme anti-LGBT groups strongly support him. And he has repeatedly voiced skepticism about Supreme Court decisions recognizing that constitutional rights must keep pace with changing social conditions.
But even with the addition of an extremely conservative new justice, the Court is unlikely to issue a ruling that would be as disruptive, unpopular, and damaging to the Court’s institutional credibility as reversing Obergefell would be. Same-sex marriage has been legal for over 10 years in some states and at least three years in every state. In Utah, they have been able to marry since October 6, 2014, when the Supreme Court declined to review the Tenth Circuit’s ruling in Kitchen v. Herbert, the groundbreaking case litigated by the authors of this piece.
A recent Gallup poll found that more than 10 percent of LGBT adults have same-sex spouses. Many of these couples are raising children. Reversing Obergefell would be devastating for these families and cause almost unimaginable legal chaos. Overnight, some state marriage bans would spring back into effect, regardless of continued support from state legislatures or the public. Some conservative legislatures would likely hurry to pass new laws barring same-sex couples from marriage. Employers, health insurers, pension plans, and state and local governments would be left in limbo about the validity of existing marriages. Cases attempting to sort through the resulting uncertainty would flood the courts. Countless administrative questions would arise, and governments at every level would be left scrambling to resolve them. The disruption and harm to families, as well as the sheer waste of public and private resources, would be enormous.
A Supreme Court decision that caused so much turmoil would be hugely unpopular. Two-thirds of Americans now support marriage equality. Among 18- to 36-year-olds, that number rises to 74 percent. Suddenly stripping LGBT people of this fundamental right would provoke widespread outrage, disapproval, and backlash. In some states, sustained protests and civil disobedience would ensue. Public officials would be called upon to resist the Court’s ruling, and many would do so. The political price of reversing Obergefell for conservatives would be particularly high, energizing progressives and creating a new dilemma for many moderate Republicans who have supported marriage equality. The strain on our nation’s already frayed, and fragile social fabric would be great.
Such an unprecedented decision would also severely undermine the Court’s credibility. Never before in the Court’s history has it voted to take away rights previously bestowed upon a minority group. As Justice Ginsburg noted in a 1996 case called United States v. Virginia, “a prime part of the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded.” For the Court to reverse that trajectory and hold that states may once again deny equal rights to LGBT people would be not only shocking for social and economic reasons but also a drastic departure from precedent — a core value of the law and the Supreme Court.
For conservatives, there would be long-term negative consequences, as society (and eventually the Court) becomes increasingly supportive of LGBT people. For this reason, conservatives hoping for a reversal of Obergefell should be careful about what they wish.
Despite his dissent in Obergefell, Chief Justice Roberts will likely seek to protect the Court from such institutional harm. While it takes only four justices to agree to hear a case, Roberts’ vote would be necessary to reverse Obergefell. The Chief Justice signaled the unwillingness to do so in Pavan v. Smith, a 2017 case in which the Court ruled that states must comply with Obergefell and thus cannot discriminate against married same-sex couples when issuing birth certificates to their children. Roberts pointedly declined to join Justice Gorsuch’s dissent, a barely veiled attack on Obergefell and all but invited states to undermine it.
More recently, Roberts joined Justice Kennedy’s majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which included an acknowledgment that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” The Court, including Roberts, also held that “[t]he exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” By assenting to such a strong affirmation of same-sex couples’ right to equality, the Chief Justice has at a minimum made reversing Obergefell a much heavier institutional lift.
However, a more conservative Supreme Court will almost certainly not expand rights or protect LGBT people more than necessary to preserve existing precedent. Conservatives are likely to bring new cases, in the hopes of chipping away at important LGBT rights already won. None of us should be complacent or assume that rights like marriage equality are not under attack. LGBT people and allies must be politically, socially, and economically proactive in continuing to advance equal rights for all citizens.
The prospect of a Court dominated by a conservative majority is daunting for LGBT people, and many dangers lie ahead. As new cases affecting LGBT people come before the Court, the risk of decisions that undermine their security are great. But marriage equality, at least, is likely here to stay. For same-sex couples and their children in Utah and other states, that hard-won right — and the precious stability, dignity, and freedom it conveys — is likely to endure.
Peggy Tomsic and James Magleby are attorneys with Magleby, Cataxinos, and Greenwood, based in Salt Lake City. Shannon Minter is the legal director of the National Center for Lesbian Rights. Tomsic, Magelby, and Minter represented three same-sex couples in Kitchen v. Herbert, the nation’s first successful federal case challenging a state marriage ban.