Supreme Court Packing – How safe is the precedent established by Obergefell v. Hodges?

by Cassandra Skolnick, October 30, 2020

The passing of Supreme Court Justice Ruth Bader-Ginsburg left the United States in insurmountable mourning. While many of us took time to reflect on the life of a human rights icon, conservatives fixated on the opportunity to pack another conservative justice into an already ideologically polarized Supreme Court (hereto referred to as, “SCOTUS”).

Supreme Court Justices Clarence Thomas and Samuel Alito also wasted little time mourning the loss of a longtime colleague and friend. Within a month of her passing, both justices were expressing their disgust over legal precedent created in the landmark 2015 Supreme Court decision of Obergefell v. Hodges, legalizing same sex marriage. Thomas questioned the courts involvement in the case to begin with:

“It would be one thing if recognition of same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”

(Nanos)

The Trump administration’s appointments of justices Neil Gorsuch and Brett Kavanaugh, and nomination of Amy Coney Barrett to the bench would certainly tip the balance in favor of conservatives who are hard pressed on overturning Obergefell

However, I propose in this article that the legal precedent set by Obergefell is safe and here to stay. I will defend my opinion through an analysis of five supporting arguments; the textualist interpretation of law by Supreme Court Justice Neil Gorsuch, the court principle of stare decisis, growing empathy and support for same sex couples, the Full Faith and Credit Clause of the United States Constitution, and the potential for legislative intervention.

Supreme Court Justice Neil Gorsuch

Supreme Court Justice Neil Gorsuch has not been the pariah conservatives had hoped for when President Trump appointed him to the SCOTUS. Gorsuch is a textualist; someone who interprets the law by how it is written.

In July of 2019, David Savage of the Los Angeles Times said of Gorsuch, “He is a libertarian who is quick to oppose unchecked government power, even in the hands of prosecutors or the police. And he is willing to go his own way and chart a course that does not always align with the traditional views of the right or the left” (qtd. in Ballotpedia).

We saw evidence of textualist interpretation in June of 2020, when Gorsuch joined Supreme Court Justice John Roberts and the liberal majority in Bostock vs. Clayton County; a ruling that states that Title VII of the Civil Rights Act protects gay and transgender employees from employment discrimination (Leonardi).

Gorsuch was right in his interpretation. In the majority opinion, Gorsuch determined that it would not be possible for an employer to discriminate on an employee on the basis of their sexual orientation or gender identity without also discriminating on them on the basis of sex. Discrimination on the basis of sex is prohibited by law, therefore civil rights protections are extended to gay and transgender employees.

It sounds like a clear-cut interpretation, but conservatives were furious with Gorsuch for his ruling. There was a public outcry, with evangelicals and right-wing media calling Gorsuch a traitor and sell-out (Arkes, Perano). However, Gorsuch made his ruling based on an interpretation of law that was already established. While it remains to be seen how he would respond to an opportunity to overturn Obergefell; textually speaking, I have a hard time believing Gorsuch will join a conservative majority in overturning existing precedent.

Stare Decisis

Relatively few people know about the court principle of stare decisis, but this Latin phrase translates to mean “…to stand by that which is decided” (Young). Generally, this means that once the court has established a legal precedent, it usually commits to uphold that legal precedent when ruling on similar cases.

While this has been a common court principle throughout history, I consider it imperative to point out that Supreme Court Justice Clarence Thomas has made it abundantly clear to his colleagues that he does not believe in being bound to the court principle of stare decisis. Thomas wrote, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it” (qtd. in Reuters).

With the exception of Thomas, the SCOTUS has remained steadfast in their position, reluctant to overturn precedent without significant rationalization. Overturning Obergefell would mean the potential revocation of the marriages of hundreds of thousands of same sex couples. It would be irretrievably damaging to the Court’s image if they disrupted the lives of hundreds of thousands of Americans without irrefutable proof that Obergefell is infringing on constitutional liberties.

Americans Support Same Sex Marriage

Public opinion has historically had minimal impact on SCOTUS decisions, but the latest studies by researchers show that this has changed in recent years. One research collaboration, SCOTUSPoll, concluded “that the court’s position in every major case this term was exactly in line with public opinion” (Smith). What does that mean for the future of Obergefell?

Well, support for same sex marriage has grown extensively since the SCOTUS ruling in 2015. A recent survey conducted by the Public Religion Research Institute (PRRI) “…found about 70% of Americans said they support granting same-sex couples the right to marry — the highest percentage of supporters the survey has recorded. 28% of Americans said they opposed it” (Andrew). Republicans even showed increased support. The same survey conducted by PRRI found that “…50% of Republicans say they support same-sex marriage, their percentage of support still jumped since the 2017 survey when 42% supported it” (Andrew).

The once stable position of the Catholic Church has also seen a remarkable shift, when a documentary premiered and revealed Pope Francis declaring support for civil unions of same sex couples (Horowitz). While civil unions are not the same as marriages, it is the first time the Catholic Church has expressed any form of support for same sex couples.

Corporate America is another area seeing improvement in their support of same sex marriage. Companies like Nabisco have come under fire from the right-wing conservative coalition–One Million Moms–over commercials expressing messages of inclusion, acceptance, and support for same sex couples. They have organized boycotts in an effort to impede further progressive stances, but these boycotts are mainly symbolic.

However, the biggest confirmation of this shift in support for the LGBTQ+ community may be the growing number of openly gay and transgender politicians being elected to public office. Last month, Sarah McBride, a transgender woman from Delaware, won her primary bid by over 90% of the vote. She is now poised to become the first openly transgender politician ever elected to any state senate (Rodriguez). According to Victory Fund, “Since 1991, Victory Fund has helped elect thousands of LGBTQ people to positions at all levels of government” (Victory Fund).

The level of support in this country is at all-time highs. With public opinion clearly opposing an overturn of Obergefell, the chances remain slim that the SCOTUS will choose to review any cases that attempt to reverse the 2015 precedent.

Full Faith and Credit Clause

The Full Faith and Credit Clause (FFCC) is the most disputed of my arguments. Used for the purpose of enforcing judgments across state lines, the FFCC also recognizes legal marriages contracted in another state. However, the argument has been made that the framework for the FFCC, “does not mandate recognition of same sex marriages or that it does so for limited purposes” (Singer). Prior to Obergefell, scholars also interpreted the FFCC to cover residents of states where same sex marriage was legalized, “but not nonresidents seeking to evade their restrictive home state marriage laws” (Singer).

However, with the Obergefell decision, the FFCC now provides fundamental support for same sex marriage. To stress this argument, I need to explain two important events from the nineties: the lawsuit, Baehr v. Miike, and the Defense of Marriage Act (DOMA).

In 1993, Baehr v. Miike, “was a lawsuit in which three same-sex couples argued that Hawaii’s prohibition of same-sex marriage violated the state constitution” (Wikipedia, “Baehr v. Miike”). The Supreme Court of Hawaii ordered the case reviewed by a trial court to determine whether or not the state was justified in prohibiting same sex couples from marrying. The state failed to present a convincing argument, and the judge ruled that excluding same sex couples from marriage was indeed discrimination (Lambda Legal).

The ruling in Baehr v. Miike panicked conservatives in Congress, who recognized that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits” (Wikipedia, “Defense of Marriage Act”). That’s because legalizing same sex marriage in Hawaii would mean forcing other states to recognize same sex marriages from Hawaii under the FFCC. In response, they passed legislation known as the Defense of Marriage Act (DOMA).

DOMA was a straightforward law passed by Congress during the Clinton administration. “It defined marriage for federal purposes as the union of one man and one woman, and allowed states to refuse to recognize same sex marriages granted under the laws of other states” (Wikipedia, “Defense of Marriage Act”). The intention behind DOMA was to create a barrier to the FFCC, preventing states from having to recognize same sex marriages that were performed in states where it was legal.

The SCOTUS cases of United States v. Windsor in 2013 and Obergefell v. Hodges in 2015 ruled the two sections of DOMA unconstitutional, thus legalizing same sex marriage and restoring the power of the FFCC to recognize same sex marriages across state lines.

Legislative Intervention

The 2020 national election is probably the most important election of our lifetime. Learning from the 2016 fiasco, we know better than to rely on polling to indicate the winners in various races. However, I believe we are going to see a much-needed change in power.

A Democratic majority in the House of Representatives, Senate, and Presidency, would mean passing of a broad legislation known as the Equality Act. The Equality Act means exactly what it says, “…consistent and explicit anti-discrimination protections for LGBTQ people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service” (HRC).

In a survey conducted by PRRI on support for legislation like the Equality Act, they found, “More than seven in ten (71%) Americans say they favor laws that would protect lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in employment, housing, and public accommodations” (Vandermaas-Peeler et al.).

The main obstacle to passing this crucial legislation has been Senate Majority Leader Mitch McConnell (R-KY) and the Republican majority in the Senate. McConnell has repeatedly refused to hold a floor vote on the Equality Act, regardless of the fact that it has passed the House of Representatives. Pending any surprises in November, we should finally witness the advancement of this crucial piece of legislation.

Conclusion

While nobody can predict what the future holds, I contend that the arguments above provide significant obstacles to conservatives hoping to overturn the precedent established by Obergefell v. Hodges.


Works Cited

Andrew, Scottie. “70% Of Americans Support Same-Sex Marriage — a New High — a New Survey Finds.” CNN, Cable News Network, 22 Oct. 2020, 6:14 PM ET, http://www.cnn.com/2020/10/22/us/same-sex-marriage-support-increases-trnd/index.html.

Arkes, Hadley. “Here’s The Only Path Open To Republicans After Neil Gorsuch’s Betrayal.” The Federalist, The Federalist, 29 June 2020, http://thefederalist.com/2020/06/25/heres-the-only-path-open-to-republicans-after-neil-gorsuchs-betrayal/.

“Baehr v. Miike.” Wikipedia, Wikimedia Foundation, 17 Oct. 2020, http://en.wikipedia.org/wiki/Baehr_v._Miike.

“Baehr v. Miike.” Lambda Legal, 9 Dec. 1999, http://www.lambdalegal.org/in-court/cases/baehr-v-miike.

“Defense of Marriage Act.” Wikipedia, Wikimedia Foundation, 21 Sept. 2020, http://en.wikipedia.org/wiki/Defense_of_Marriage_Act.

Horowitz, Jason. “Pope Francis, in Shift for Church, Voices Support for Same-Sex Civil Unions.” The New York Times, The New York Times, 21 Oct. 2020, http://www.nytimes.com/2020/10/21/world/europe/pope-francis-same-sex-civil-unions.html.

Leonardi, Anthony, and Nicholas Rowan. “Supreme Court Rules Workers Cannot Be Fired for Being Transgender or Gay.” Washington Examiner, 15 June 2020, http://www.washingtonexaminer.com/news/supreme-court-rules-workers-cannot-be-fired-for-being-transgender-or-gay.

Nanos, Elura. “Clarence Thomas Refuses to Hear Kim Davis’s Case, But Calls Obergefell Decision a ‘Problem’ Only SCOTUS ‘Can Fix’.” Clarence Thomas Criticizes Obergefell When Rejecting Kim Davis Case | Law & Crime, Law & Crime, 5 Oct. 2020, http://lawandcrime.com/supreme-court/clarence-thomas-refuses-to-hear-kim-daviss-case-but-calls-obergefell-decision-a-problem-only-scotus-can-fix/.

 “Neil Gorsuch.” Ballotpedia, https://ballotpedia.org/Neil_Gorsuch.

 “Our Mission.” LGBTQ Victory Fund, http://victoryfund.org/about/mission/.

Perano, Ursula. “Prominent Conservatives Tear into Gorsuch for Supreme Court Ruling on LGBT Protections.” Axios, Axios, 15 June 2020, http://www.axios.com/supreme-court-gorsuch-lgbt-64850955-d204-4e92-89f1-ab4c3b8e2ccd.html.

Rodriguez, Barbara. “In Historic Year for Trans Candidates, Sarah McBride Poised to Become the Nation’s First Openly Transgender State Senator.” USA Today, Gannett Satellite Information Network, 25 Sept. 2020, 9:12 AM ET, http://www.usatoday.com/story/news/politics/2020/09/25/sarah-mcbride-poised-nation-first-openly-transgender-state-senator/5827014002/.

Singer, Joseph William. “Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation.” SSRN, 11 Apr. 2005, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=697862.

Smith, James F. “U.S. Supreme Court v. American Public Opinion: the Verdict Is In.” Harvard Kennedy School, Harvard Kennedy School, 13 July 2020, http://www.hks.harvard.edu/faculty-research/policy-topics/democracy-governance/us-supreme-court-v-american-public-opinion.

Stempel, Jonathan. “Justice Thomas Urges U.S. Supreme Court to Feel Free to Reverse Precedents.” Reuters, Thomson Reuters, 17 June 2019, http://www.reuters.com/article/us-usa-court-thomas/justice-thomas-urges-u-s-supreme-court-to-feel-free-to-reverse-precedents-idUSKCN1TI2KJ.

“The Equality Act.” HRC, Human Rights Campaign, http://www.hrc.org/resources/the-equality-act.

Vandermaas-Peeler, Alex, et al. “Wedding Cakes, Same-Sex Marriage, and the Future of LGBT Rights in America.” PRRI, PRRI, 2 Aug. 2018, http://www.prri.org/research/wedding-cakes-same-sex-lgbt-marriage/.

 Young, Julie. “Stare Decisis and Legal Court Precedents.” Investopedia, Investopedia, 13 Sept. 2020, http://www.investopedia.com/terms/s/stare_decisis.asp.

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