Legal experts expect major chaos if the Supreme Court overturns Obergefell

13 July 2022

Civil libertarians have been warning that if the U.S. Supreme Court overturned Roe v. Wade, contraception and gay rights would be next on the Christian nationalist chopping block — and sure enough, when the High Court overturned Roe with its ruling in Dobbs v. Jackson Women’s Health Organization, far-right Justice Clarence Thomas called for the Court to “reconsider” 1965’s Griswold v. Connecticut (which made contraception a constitutionally protected right for married couples), 2003’s Lawrence v. Texas (which struck down anti-gay sodomy laws as unconstitutional) and Obergefell v. Hodges (which made same-sex marriage a nationally protected right).

Journalists Kate Sosin and Candice Norwood examine the possibility of Obergefell being overturned in an article published by The 19th on July 11†, stressing that attorneys and legal experts focused on gay rights are “scrambling” to deal with that possibility.

“LGBTQ+ advocates — already exhausted from battling hundreds of anti-trans bills in states for three years — started to grapple with another reality after the Supreme Court overturned Roe v. Wade: Marriage equality now seems vulnerable to being overturned, and legal experts are unsure what could be done to protect LGBTQ+ marriage rights,” Sosin and Norwood explain. “Now, queer legal experts are scrambling to put together a strategy as they debate if Congress has the authority to shore up marriage protections or if the country would revert to a 2014 patchwork, with most states outlawing LGBTQ+ marriages.”

Jenny Pizer, who serves as law and policy director for Lambda Legal, is unsure what steps can be taken to protect same-sex marriage from a legal standpoint.

Pizer told The 19th, “I can’t give you an answer to that question as we have that conversation now. I’ve been practicing law now for quite a while, and we have not had this situation of rights being taken away.”

Sosin and Norwood point out that according to legal experts, the U.S. Supreme Court’s decision to overturn Roe in the Dobbs case makes “other civil rights protections vulnerable to being thrown out” — for example, “the right to interracial marriages” with Loving v. Virginia, “contraception” with Griswold v. Connecticut, “sexual relationships for LGBTQ+ people” with Lawrence v. Texas and “marriage for LGBTQ+ couples” with Obergefell v. Hodges.

Kimberly Mutcherson, a law professor at Rutgers University in New Jersey, discussed Obergefell and the Supreme Court with The 19th, saying, “The Supreme Court could say, ‘We can’t find this right in the Constitution,’ which is correct — it doesn’t exist as an enumerated right. And it is absolutely not a right that is deeply rooted in the nation’s history and tradition. So, they can say, ‘Let’s throw it back to the states.’”

According to Sosin and Norwood, Naomi Goldberg, deputy director of the Movement Advancement, has “been analyzing state marriage laws in anticipation of a scenario where Obergefell is struck down” — and she “believes that if the Supreme Court invalidated its own marriage ruling, 32 states would revert back to banning marriage equality.”

Goldberg told The 19th, “I feel, in many ways, as though we’re back in 2004, in 2008, with the prospect of what it takes to have those conversations with the public to do deep public education work. It’s an incredible investment. I feel sad that that is something we might have to do because I think there’s so many more issue areas where I want to be investing that time.”

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