Gay Marriage: Under Attack?
WHY YOU SHOULD CARE
Because gay marriage could go the way of Roe v. Wade.
By Libby Coleman
In 2004, nearly a dozen ballot measures against same-sex marriage passed, and #43 (George W. Bush) was reelected. Eleven years later, the Supreme Court decided, in Obergefell v. Hodges, that same-sex marriages must be recognized nationwide. Public opinion has now flopped from 57 percent opposed to gay marriage in 2001, according to PEW, to 55 percent supporting it in 2016. President-elect Donald Trump said in his 60 Minutes interview shortly after the election that gay marriage is “settled” and off the table.
But how safe is it really? And what civil-rights challenges lie ahead for queer Americans?
OZY spoke with Shannon Price Minter, the legal director of the National Center for Lesbian Rights, about what’s to come in LGBT litigation. The conversation has been condensed and edited for clarity.
Will gay marriage be overturned in the next 10 years?
No, I do not think that the Supreme Court’s ruling that same-sex couples have a fundamental right to marry will be overturned. That’s because I can’t think of a single example where the U.S. Supreme Court has recognized the existence of a fundamental right, or has held that a particular law violates the equal-protection requirements, and then has reversed. Lots of decisions have gone the other way — that a group initially doesn’t have a right — and they’ve reversed those decisions, as in Plessy v. Ferguson. But they’ve never gone in the other direction.
The court has wiggle room to undermine its own decisions without directly reversing them.
There’s a hugely important caveat here — that we continue to have a Supreme Court that respects our rule of law and constitution. I don’t know, sadly, if that will continue to be the case. It’s possible [Trump] could put justices on the court who would have no regard for the court’s prior rulings. I don’t think the Senate would approve justices of that nature, but a lot of this depends on what we all do.
Would Obergefell be difficult to overturn?
The foundation we have in Obergefell is so strong and so clear. It was an extraordinary decision in many ways. It’s not very often that the court issues a constitutional decision that is so expansive that a particular group of people, in this case gay people, must be treated equally and with equal dignity and respect. It’s been a long time since the court engaged with the most fundamental principles of our constitution — equal protection and due process. Those decisions are very rare. Obergefell squarely held that same-sex couples have a fundamental constitutional right to marry on the same conditions as heterosexual couples. And their families deserve equal treatment. The court has never held a group is entitled to equal protection and then reversed that ruling.
Could gay couples’ adoption rights come under fire in the court?
Mississippi was the last state to discriminate against same-sex couples with adoption. That law was recently struck down. And last year, the Alabama Supreme Court issued a decision that Alabama didn’t have to recognize a same-sex adoption in another state. We took that to the [United States] Supreme Court, which reversed the Alabama court. That decision should help prevent any mischief around adoption.
What LGBT civil-rights issues are on the horizon?
My biggest concern is that, rather than seeing attempts to persuade the court to reverse Obergefell, we will see attempts to persuade the court to chip away at the scope of that decision. We’re already seeing anti-LGBT state officials and others in lower courts making arguments that Obergefell means same-sex couples have the right to marry but need not be treated the same as heterosexual couples. That’s ridiculous — equal treatment is a clear aspect of Obergefell. But the court has wiggle room to undermine its own decisions without directly reversing them.
What should LGBT people and their supporters do?
The single most important thing any LGBT person can do is be focused like a laser on these Supreme Court appointments and do everything we can to make the government understand we’re all watching.
Some state officials argue that married same-sex couples are not both legal parents of children born through assisted reproduction during the marriage. That issue was recently litigated at the Arkansas Supreme Court, and even though Arkansas state law provides that both spouses to whom a child is born during the marriage must be listed as parents, the Arkansas Supreme Court said that the law does not apply to children born to married same-sex couples. We’re filing a petition with the U.S. Supreme Court to review that decision.
We’ve also seen in Texas an argument by state officials that the state doesn’t have to provide equal benefits to employees who are married to a same-sex partner. Every time a hostile state official has the opportunity, they’ll say, “We don’t have to provide this benefit equally.” There’s a precedent for this in legislation that limits reproductive freedom [even in the face of Roe v. Wade].
Are LGBT groups learning from reproductive-rights groups?
There’s much overlap in these two movements. There’s a lot of collaboration and discussion. We’re determined if we can to avoid what happened with reproductive freedom. We will not make the mistake of letting down our guard.
Are you optimistic about lawsuits against gay conversion therapy?
I’m very optimistic. I think we’re going to see more and more lawsuits by survivors who have been damaged. Just last year someone for the first time brought a lawsuit under state consumer-fraud protection, and they won in New Jersey. Several men had paid a lot of money to a religious group that claimed they could change their sexual orientation, which of course cannot be done. These men lost money and said that was consumer fraud. I think we’re going to see more states passing laws that allow state licensed therapists to be disciplined.