In 2015, the Supreme Court of the United States ruled on the case of Obergefell v. Hodges. In a 5-4 decision, the Court declared that state bans on same-sex marriage were unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment. Since then, same-sex couples have been able to legally marry whomever they so choose– a right, which the Supreme Court has described as “essential to the orderly pursuit of happiness by free men.”
The recent appointment of Amy Coney Barrett to the Supreme Court shifted the court to a 6-3 conservative majority causing uncertainty about future rulings on LGBTQIA+ rights. The goal for many LGBTQIA+ people now, is no longer to gain marriage rights, but to keep them.
Public support for the LGBTQIA+ community has progressed over the years. However, according to Joel Beckwith, senior marketing major at the University of Nebraska-Lincoln, and president of the LGBTQIA+ student organization, Pride in Business, there is still a long way to go in protecting and maintaining the rights of LGBTQIA+ people.
“If you look at the history of the United States and the reason why marriage equality has always been so sought after – it’s about rights. It’s about rights that are afforded to married couples that are not afforded to single partners,” Beckwith said. “Let’s say in 2015, the Supreme Court shot down Obergefell v. Hodges – would that have stopped LGBTQ people from having civil unions and being partners or living with each other? No. And they would’ve still had marriages, too – they just wouldn’t have been recognized by law.”
One of the primary arguments surrounding marriage equality, Beckwith said, is about the legal rights afforded to married couples, which prior to 2015, only straight couples were given. The question, both inside and outside of the Supreme Court, was whether those same rights should be extended to gay couples.
“The point is never exclusively about the marriage ceremony or about gay people being together. The point is the legal document you get at the courthouse,” Beckwith said. “The fact of the matter is, when you aren’t married to your partner, you don’t get certain tax benefits, you don’t get certain health benefits – you don’t get the same legal rights and privileges that straight couples do when they get married.”
The legal recognition of same-sex marriage was a landmark civil rights case, expanding legal protections for LGBTQIA+ people and rejecting same-sex marriage bans in various states.
“Marriage equality, in a lot of ways, is about a document and the rights that come with it – and when you narrow it down to that, it also becomes about the bigotry of refusing those things to only a select group of people,” Beckwith said. “If you don’t want to give a group of people a specific document– a legal document that provides them with certain rights, which are otherwise afforded to everyone else, that is bigotry. And in this case, that is homophobia.”
Despite concerns from advocates, Obergefell v. Hodges is not likely to be overturned quickly or easily, despite the conservative majority of the Supreme Court.
“When the Supreme Court makes a decision, that becomes the law of the land, and to overturn a decision like Obergefell v. Hodges is not something that’s done lightly,” said Sara Rips, LGBTQIA+ Legal and Policy Counsel for the ACLU of Nebraska.
According to Rips, who does impact litigation, advocacy work and lobbying in the Legislature to help introduce legislation that promotes the interests of LGBTQIA+ Nebraskans, a decision such as the one made in Obergefell v. Hodges may not be as easily overturned as some may think.
“One of the legal practices in deciding how the court will act is that they look to prior decisions for guidance with future or current cases,” Rips said. “The Supreme Court has already said twice that preventing gay marriage is discrimination – in Obergefell v. Hodges and in Pavan v. Smith. Even the Court’s decision in Bostock v. Clayton County this summer, which said that not employing a person on the basis of gender identity or sexual orientation is discrimination on the basis of sex, make me hope that those kinds of cases would make it less likely for the court to just flippantly overturn a prior decision like Obergefell.”
In Pavan v. Smith, the Supreme Court reaffirmed the core decision in Obergefell that states must extend all benefits and privileges of marriage to same-sex couples.
However, the Pavan case was a 6-3 decision, whereas Obergefell was only 5-4. With the recent introduction of Amy Coney Barrett to the Supreme Court, the legality of same-sex marriage, if re-evaluated, is speculated to have a higher chance of being overturned due to Justice Barrett’s conservative viewpoints. When questioned about the Obergefell decision Justice Barrett refused to say that it was correctly made.
“Right now, we don’t know how Amy Coney Barrett is going to rule, but most likely, she is going to push a conservative majority,” Rips said. “The way that our Supreme Court has been established and run through precedent, sometimes that happens– sometimes the court leans heavily liberal, sometimes the court leans heavily conservative– sometimes judges surprise us.”
Obergefell v. Hodges was a landmark civil rights case, which has seen significant public support since it went into action. It has acknowledged the validity of marriage between same-sex partners, opened further dialogues about LGBTQIA+ rights in the United States and opposed discrimination against same-sex couples.
However, with the recent appointment of Barrett to the Supreme Court, in addition to Neil McGill Gorsuch and Brett Michael Kavanaugh, two other conservative Justices appointed by Donald Trump, Obergefell’s permanence, and the rights of LGBTQIA+ people are standing on increasingly shaky grounds.
Although overturning Obergefell v. Hodges may not be done quickly or easily, as mentioned by Rips, any possibility of LGBTQIA+ rights ending up on the chopping block yet again, will have far-reaching and anxiety-inducing effects for many.
Affording equal marriage rights and privileges to same-sex couples does not mean eliminating or affording fewer rights to everyone else – it isn’t pie. But taking them away will inevitably bring harm to LGBTQIA+ people.
“I’m going to get married one day, and my parents probably won’t come because they don’t agree with who I am – but I don’t care – they can have those viewpoints,” Beckwith said. “My marriage won’t infringe upon their existence as Christians. What will infringe upon my existence, though, is not being able to obtain the legal right to marry and the privileges that come with it.”