News & Politics

LGBT Rights Are Now Under Threat at the Supreme Court — Here's What States Can Do to Protect Them

The fate of LGBT people is uncertain as Kennedy exists the court.

Photo Credit: Elvert Barnes Protest Photography

One of the highlights of Justice Anthony Kennedy's uneven legacy on the Supreme Court of the United States is his contribution to the movement for the rights of LGBT people across the country.

But now, with his retirement imminent, those rights now face a serious threat.

The landmark ruling Obergefell v. Hodges mandating legal recognition for same-sex marriages nationwide, which Kennedy penned, could potentially be overturned by his successor. Given President Donald Trump's electoral reliance on the white evangelical community and hard-line right-wingers, it's likely that whoever he chooses to replace Kennedy will favor overturning Obergefell, or potentially limiting it.

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Business Insider columnist Josh Barro argued Friday that Chief Justice John Roberts would probably act to preserve Obergefell in the face of any challenge. Though Roberts is a consistent conservative on the court, he's also a reserved jurist who is sometimes resistant to overturning precedent.

But nothing on the court is guaranteed, so the threat to LGBT rights remains.

As Barro argued, though, this actually provides an opportunity for liberals and Democrats.

Many states still have constitutional bans on same-sex marriage on the books, even though Obergefell effectively nullified these provisions. Were Obergefell overturned, these bans would snap back into place and bar same-sex couples from marrying. Given the increased popularity of LGBT right, Barro argues, these laws create a potent organizing opportunity for liberals.

"There is an obvious way to make sure a future Supreme Court decision doesn't restore the effectiveness of the gay marriage bans that still exist in many state constitutions: Repeal them, and replace them with provisions that say people may marry people of any sex," he writes.

Barro argues that campaigns to repeal the amendments and to defend LGBT rights would have an array of benefits. He writes that they would:

  1. Allow states to ensure that marriage equality is not vulnerable to changes in the composition of the Supreme Court, which could become even more conservative if Trump is able to replace a liberal justice and Roberts is not the swing vote.
  2. Send a public message that states and their residents affirmatively support marriage equality and are not just abiding by a federal edict.
  3. Energize Democratic voters to turn out to vote for a pro-equality measure, while placing Republican politicians on the wrong side of a wedge issue.
  4. Raise the salience of judicial nominations for Democratic voters, with a powerful and ongoing reminder that it matters who sits on the Supreme Court, because key rights can be placed at risk when the court's composition changes.

Points three and four are particularly urgent. Since Kennedy's announcement, many have bemoaned that fact that liberals have been far less motivated to vote by Supreme Court considerations than conservatives have been in recent years.

The Supreme Court should matter to people who care about any number of issues — women's rights, labor, consumer protection, criminal justice, and more — but having a prominent, popular and uncomplicated case to defend such as the right to marry could be a galvanizing force for the progressive movement.

Cody Fenwick is a reporter and editor. Follow him on Twitter @codytfenwick.