From Roe To Obergefell: Religious Right Sets Sights On Reversing Same-Sex Marriage
(ANALYSIS) With two dramatic actions, the “Religious Right” is suddenly prodding the U.S. Supreme Court to overturn its historic 2015 Obergefell decision, which legalized same-sex marriage nationwide. Such a radical and unpopular switch after only 10 years might seem implausible. But a close parallel already happened in the 2022 Dobbs decision when the Court ended its former Roe v. Wade mandate on legal abortion and allowed each state to set its own policy.
The first newsworthy action came in June at the annual meeting of the Southern Baptist Convention, the nation’s largest Protestant denomination with 12.7 million members in 46,876 local congregations. A comprehensive resolution on societal ills urged abolition of Obergefell and any other rulings and laws “that defy God’s design for marriage and family.”
Action number two came on July 24 from Liberty Counsel, a Christian non-profit law firm led by Mathew Staver. It petitioned the Supreme Court to reconsider Obergefell on grounds that it has “no basis in the Constitution” and violates religious freedom. The vehicle for this appeal is a decade-long struggle that culminated in an April 28 ruling by the federal 6th Circuit Court of Appeals against an exemption claim by former Kentucky county clerk Kim Davis.
READ: By ‘Focusing On The Family,’ James Dobson Helped Propel Evangelicals Into Politics
This devout Pentecostalist was briefly jailed and still faces a court-ordered $360,000 fine for inflicting harm upon a gay couple by refusing to issue their marriage license. As online hullabaloo ensues, that aggrieved couple will be filing a response on whether the Court should choose this case for review among the 10,000 appeals it typically receives each term.
The hopes for reconsideration rely upon the arithmetic of the Supreme Court, whose current 6-3 makeup of justices is very different from that in 2015. Keep in mind that the following applies conventional “conservative” and “liberal” labels to justices, but recent appointees’ thinking is uncertain and Constitutional judgments are rarely simple.
Obergefell was decided by a thin 5-4 margin. Remarkably, each of the four justices in the minority filed separate dissents — using such freighted words as “abuse,” “indefensible,” “unprincipled,” “extravagant,” “deeply disheartening,” “potentially ruinous,” “fundamentally at odds with our system of government,” and “just who do we think we are?” Three of these dissenters are still on the Court: Chief Justice John Roberts, Samuel Alito and Clarence Thomas. The fourth, the late Antonin Scalia, was succeeded by fellow conservative Neil Gorsuch.
Among the majority justices, Elena Kagan and Sonia Sotomayor remain, while Stephen Breyer was succeeded by fellow liberal Ketanji Brown Jackson. The flip with the two other seats is pivotal. Anthony Kennedy, who wrote the Obergefell ruling, was succeeded by conservative Brett Kavanaugh, and liberal lioness Ruth Bader Ginsburg by conservative Amy Coney Barrett. Since three current justices are ardently opposed to Obergefell, in theory two of the other three conservatives could join them to rewrite same-sex law. Crucially, only one added conservative would provide the four votes needed to accept review of the Davis case or another such appeal.
Digging into the legalities a bit, Kennedy’s opinion asserted that marriage “is a fundamental right inherent in the liberty of the person” so denial “works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.” Despite the longstanding heterosexual monopoly, “new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged.” The basis for marriage revision was two guarantees in the 14th Amendment when slavery was abolished, the “equal protection of the laws” and the “due process of law” when liberty is threatened.
Kennedy emphasized that second point, applying the “substantive due process” theory that recognizes rights not specified in the Constitution. The dissenting justices objected that the Court’s own precedents allow such “substantive” extensions only when an asserted new right is “objectively, deeply rooted in this nation's history and tradition” (quoting the 1997 Glucksberg decision allowing laws against assisted suicide that in turn cited the 1934 Snyder decision regarding murder defendants). The conservatives asserted that Americans who ratified the 14th Amendment upheld what Roberts called “the meaning of marriage that has persisted in every culture throughout human history.”
The dissenters also contended that such societal disputes must be settled democratically by the people or their elected representatives, not judges. Prior to Obergefell, a liberalizing trend was under way and 11 states plus D.C. had allowed same-sex marriage, starting with a 2003 edict by the highest court in Massachusetts.
A key principle involved here is stare decisis, a Latin phrase meaning “let the decision stand.” That directs jurists to maintain stability in the law and be supremely cautious about overturning prior precedents.
The Supreme Court’s now-erased mandate on liberalized abortion stood for 49 years. In another famous example, it took 58 years before the Court unanimously abolished its “separate but equal’ Plessy decision that allowed states to enforce racial segregation.
A religious note on this issue: When Obergefell was being decided in 2015, the Southern Baptists and other evangelical Protestants opposed the legal redefinition of marriage, alongside the nation’s Catholic and Eastern Orthodox bishops, Orthodox Jews, Latter-day Saints, Muslim traditionalists and organizations of social conservatives. Those favoring the change included liberal Protestants and Jews, Unitarian Universalists, church-state separationists and secularist groups.
Richard N. Ostling was a longtime religion writer with The Associated Press and with Time magazine, where he produced 23 cover stories, as well as a Time senior correspondent providing field reportage for dozens of major articles. He is a recipient of the Religion News Association's Lifetime Achievement Award. He has interviewed such personalities as Billy Graham, the Dalai Lama, Mother Teresa and Joseph Cardinal Ratzinger (later Pope Benedict XVI); ranking rabbis and Muslim leaders; and authorities on other faiths; as well as numerous ordinary believers. He writes a bi-weekly column for Religion Unplugged.