Jim Obergefell, right, and then-HRC President Chad Griffin at the Round-Up Saloon on June 29, 2015, celebrating marriage equality days after the ruling legalizing same-sex marriage. (David Taffet/Dallas Voice)

How the Supreme Court may undo marriage equality

DAVID TAFFET | Senior Staff Writer
taffet@dallasvoice.com

The current U.S. Supreme Court has already shown it has little respect for precedent. With the overturning of Roe v. Wade, we’ve seen what the current court is willing to do.

The court didn’t make abortion illegal in the U.S., Dobbs v. Jackson Women’s Health Organization, but returned abortion rights to the states. And that meant eliminating a woman’s right to terminate a pregnancy across the south with Texas instituting among the harshest restrictions.

While Dobbs overturned a 50 year precedent, the right for same-sex couples to marry is less than a decade old. Is overturning the right to marry next on the chopping block?

The court showed its feeling toward LGBTQ people in the 303 Creative case decided earlier this summer. Businesses, the court ruled, could be shielded from non-discrimination laws to protect religious beliefs.

In that case, a website designer proposed a business to do wedding websites but only for straight couples. Even after it was revealed that the plaintiff made up the events, had no web design business and the gay couple requesting a wedding website didn’t exist, the Supreme Court took the case and found in favor of the (non-existent) business.

The ruling harkened back to Jim Crow rulings by the court that ignored 14th Amendment equal protection under the law and gave businesses cover to ignore state and local nondiscrimination ordinances and laws that cover groups not specified in federal regulations.

But could the court overturn the fundamental right to marry? Would the court annul the thousands of marriages that currently exist?

Would states still have to recognize the marriages performed in states where marriage remained legal?

Even more insidious, could states prevent their citizens from traveling to other states to marry as some states have tried to prevent its citizens from traveling for abortions and penalized those who attempted to help financially or otherwise?

Family law attorney Karri Bertrand thinks so.

Shelly Skeen

She said she believes there are a number of avenues the religious right may use to make marriage equality a state’s rights issue.

Among them would be a case where a county clerk refuses to issue a marriage license to a same-sex couple. The couple sues and wins under Obergefell and the clerk appeals until the case hits the Supreme Court.

Lambda Legal Regional Director Shelly Skeen agrees. She points out the case of Kim Davis, a Kentucky county clerk who sued after she went to jail for refusing to issue a marriage license to a same-sex couple.

In that case, the Supreme Court refused to hear the case, but there was a dissent issued that said Obergefell was decided incorrectly.

And in his concurring opinion in Dobbs, “Justice Clarence Thomas struck at substantive due process,” Skeen said.

In his opinion, Thomas said cases dating back to the 1960s involving birth control, abortion and marriage equality had been incorrectly decided. Interestingly, interracial marriage was not among his list of cases that needed review, even though it was decided using the same substantive due process argument. Thomas’s marriage is interracial.

Skeen said the protection of substantive due process is “covered in the 14th Amendment and covers rights not specifically enumerated in the Constitution or the Bill of Rights.”

While it was written to prevent someone from holding another person in captivity and forcing them to provide labor or preventing someone else from voting, substantive due process has been expanded to include everyone. Among those rights it protects is the right to have or not have a child using contraception and the right to determine how your child is raised.

“The government can’t tell you what to do with your body,” she said and has been upheld in a number of court cases.

Among the most recent is Obergefell, which said the government can’t interfere with your choice of who you marry.

The 14th Amendment gives us “the right to make choices — as long as we’re not harming another person,” Skeen said.

Should a case like the Kim Davis case reach the U.S. Supreme Court, a ruling, similar to the Dobbs ruling that returned abortion rights to the states, would return marriage rights to the states. And in Texas, the Family Code is clear that same-sex marriages are not recognized.

Skeen does point out that the federal Respect for Marriage Act overrides the Texas Family Code. She said she thinks couples who are already married would remain married and couples who want to marry would have to travel to a state with marriage equality to marry. That marriage would have to be recognized across the country because of the current federal law.

Prior to the Windsor case in 2013, the Defense of Marriage Act as law preventing the federal government from recognizing same-sex marriages that were performed in states where marriage was legal and allowing states like Texas to refuse recognition.

Bertrand thinks there’s another path to reversal of Obergefell. She believes a parental rights case may do to same-sex marriage what Dobbs did to abortion. The question in Dobbs was whether reducing the window for an abortion, as Mississippi’s legislature had done, was legal. Instead, the court returned abortion legislation to the states and overturned Roe.

“A lot of my clients only have parental rights because of their marriage,” Bertrand said.

She believes a divorce case to retain visitation rights could allow the court to address the broader issue of marriage rights and return it to the states.

“If they overturn Obergefell, they have to overturn Pavan stripping back parental rights, as well,” she said.

Pavan reversed an Arkansas State Supreme Court decision that banned same-sex married couples from having both spouses’ names listed on their children’s birth certificates even in cases where one mom was the egg donor and the other mom carried the pregnancy.

Bertrand said she’s not sure how the court would resolve a case like that where a genetic test would support the parental rights of one mother and hospital records of the birth would support the other. But that’s the type of confusion she’s expecting to return to should Obergefell be overturned.

Another issue that could become very muddled would be transgender marriage rights. That would become even more complicated based on the right to change a gender marker, Bertrand said.

If a state refused to change a gender marker, then a trans woman could marry a cis woman in a state that no longer allowed same-sex marriage, for example. And what about a trans woman who got a gender marker change in a state that allowed it who married a trans woman in a state that didn’t? Would a state like Texas or Florida then try to ban any transgender person from marrying anyone at all?

“There are some horrible scenarios,” Bertrand said. “It keeps me up at night. We’re in such a strange legal time warp. Everything’s game with this particular court.”