With Brett Kavanaugh replacing Justice Kennedy on the Supreme Court, which is a virtual inevitability, there is concern not only for the survival of Roe v Wade but also for the Obergefell ruling that legalized same-sex marriage nationally in 2015. This was Kennedy’s greatest — only — legacy on the court. But my friend Walter Olson, a gay libertarian legal scholar at the Cato Institute, says it’s unlikely that the new court will overturn that ruling. He offers several reasons.
2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.
Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more. These effects would hit on day one because an earlier generation of social conservatives managed to write bans on same-sex marriage and equivalents into many state constitutions. Those bans would prevent elected officials from finding legal half-measures to avert massive dislocation for innocent persons.
This is true, but will it actually matter to the five conservatives on the court? Overturning Obergefell would create a hell of a mess, at the state level especially, now that around 400,000 same-sex couples have already gotten married. The disruptions would be enormous. But I’m not convinced that the members of the court who would vote to overturn the ruling will care about that. It isn’t their problem, after all. I don’t think Walter’s analysis is necessarily incorrect, but I think it’s just as likely that they’ll say it’s better to do it now before that number gets even bigger.
3. The American public would not view all this turmoil as somehow worth enduring in order to get rid of a widely detested decision. Since the Obergefell ruling, as per Pew Research last year, the longstanding trend toward acceptance of same-sex marriage has continued, with support rising from 55% in 2015 to 62% in 2017. Just 32% of Americans opposed gay marriage as of last year. Opposition to legal recognition of same-sex marriage commands less than a majority even among those who vote or lean Republican. University of Virginia legal scholar Sai Prakash writes that in this area Justice Kennedy’s “opinions seem secure because his jurisprudence largely mirrors changes in society.”
5. Since Obergefell came down, cooler heads on the social-conservative side have urged pivoting away from vain attempts to block the transformation in public opinion, in favor of finding an accommodation for religious minorities who object—the theme of Masterpiece Cakeshop and several pending cases.
6. The one high-court decision to test Obergefell’s limits is Pavan, a somewhat technical case on the issuance of amended birth certificates. After the Arkansas Supreme Court seemed less than fully on board with Obergefell’s spirit, the high court swatted it down in a six-justice per curiam summary reversal—legalese for telling a balky teen, “We don’t even want to hear your story about this, now go clean up what you did.” Widely noted on Pavan: Chief Justice John Roberts crossed over to join the four liberals and Justice Kennedy. Equally notable: Justice Neil Gorsuch, writing for the three dissenters who wanted to hear the state’s argument, stayed well away from culture-war implications and framed the dispute as about how best to implement Obergefell, not whether to retreat from it.
Interesting, but not necessarily dispositive. I’d say that Walter is more optimistic than I am about this, which doesn’t mean he’s wrong. I could be wrong about this as well. Divining the future is never easy. I’m not ready to join the “sky is falling” camp on this one. I do think Roe is dead now, or will be soon, but I’m not that convinced on Obergefell. I hope that he is right about this one and that the court leaves that decision alone. We do not need to turn back the clock on this or almost any other issue.