Friday, April 28, 2017

The Future of Same-Sex Marriage

Written by  David Egan

First the good news: Don’t panic! Your right to enter into same-sex marriage is safe. Obergefell v. Hodges – the 2015 Supreme Court decision that legalized same-sex marriage – is highly unlikely to be repealed. Here’s why:

1) Only the Supreme Court can repeal that decision.

Neither the president nor Congress can change what the Supreme Court has decided. The president and Congress can influence this process by appointing Supreme Court justices who lean in a particular direction. If your most immediate concern is Justice Gorsuch, remember that he replaces another conservative justice, so right now it’s a one-for-one swap. More on this below.

2) Someone would have to bring a credible challenge.

This won’t be easily done. An ideological objection is not enough. Amanda Marcotte, who covers American politics and feminism for Salon, wrote that, “…in order to revisit the Obergefell decision, you’d need to have a plaintiff. And it can’t just be anyone who happens to object to same-sex marriage. Such a plaintiff would have to prove that he or she had standing to sue in court” – which means arguing that plaintiff had suffered injury.

Such an argument has already been solidly rejected by the courts.

Dan Canon, counsel for the Kentucky plaintiffs in Obergefell v. Hodges, agrees that such a challenge would be unlikely to succeed. “Someone would have to be injured by someone else’s right to be married. Courts have consistently said you’re not injured by someone else’s right to get married.”

3) A challenge has to survive in the lower courts. Someone would have to bring a case on the local, and then the state, level to argue how, specifically, a person has been harmed by someone else’s right to be married.

A case would have to make it all the way to the state level for the Supreme Court to even consider hearing it. Given that the Supreme Court decision was rendered just two years ago, that’s highly unlikely.

4) The Supreme Court would need to agree to hear the case. Camilla Taylor, who served as director for the marriage project at Lambda Legal before the Supreme Court ruling, said that, “Even really conservative justices don’t like to go back and revisit very recent decisions.”

Dr. Patrick Egan (no relation to the author of this article), an associate professor of politics and public policy at New York University, agrees. “Based on a fair amount of political science research, even the most ideological judges tend to be pretty reluctant to reverse established precedent.”

Amanda Marcotte agrees. She thinks that the odds that the Supreme Court would bother hearing this argument out are infinitesimal.

5) Vox populi: The people have spoken. There’s no call from the general population to reverse marriage equality. Public-opinion polls now show that an overwhelming majority of Americans are in favor of marriage equality.

CBS News reported almost a year ago that there are now about 491,000 same-sex marriages in the U.S. That’s nearly a million people married. They represent about ten percent of the U.S. population of LGBT adults. That’s a lot of people with voice and vote.

6) The balance of the Supreme Court remains the same – for now. The conservative/liberal balance on the high bench remains the same today as it was when the ruling was made in 2015, albeit with a different conservative justice in place. The danger arises should President Trump – or another president who has the desire to eliminate the right of same-sex couples to marry – be in office when the next Supreme Court justice departs. That’s not out of the question: Justice Kennedy is age 80, Justice Ginsburg is 83, Justice Breyer is 78. The average age of retirement of Supreme Court justices has been 78.

Next time: the bad news – related challenges afoot,

David Egan is the proprietor and steward of Chase Court, a historic Baltimore wedding and event venue. Visit chasecourt.com, and follow ChaseCourtWeddingVenue on Instagram and Facebook! Send your comments and questions to This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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