Yesterday morning the Supreme Court opened their term with a bombshell: Both Alito and Thomas signaled that if they had their way, the marriage equality ruling from 2015 would be overturned, stripping away nationwide marriage and throwing us right back into the ugly legal battles that seem like they were a million years ago.
It was not, in fact, that long ago that the freedom to marry was in doubt; I was part of the team that brought one of the cases to the Supreme Court a little less than a decade ago (wrote a book about it, etc). The thought of re-opening all that litigation and fighting over “the sanctity of marriage” all over again gives me hives.
So should we be worried? As is the case with everything in recent years, the answer is “hard to say, but probably yes, very.”
For now, there’s no case pending before the court that could actually overturn marriage. But this week’s surprise essay from Thomas and Alito is like an open invitation for homophobes to create one. In fact, they close their ruling with the line “the Court has created a problem that only it can fix.”
Essentially their argument boils down to the belief that for the time being, America can either have marriage equality or religious liberty, but we can’t have both; and the court (this argument goes) should fix that.
And fix it the court might, particularly if Republicans manage to weasel Amy Coney Barrett onto the court. Gorsuch and Roberts have expressed hostility to same-sex couples in the past, and Barrett’s matched them.
We should have a much clearer picture of the court’s temperament by November 4. Not only will that be the day after the election—surely a day of calm reflection—but it’s also the day the court will hear oral argument in Fulton v. City of Philadelphia, a case involving a dispute over just how much authority governments have to compel taxpayer-funded organizations to follow nondiscrimination rules.
A ruling against the City of Philadelphia could allow nonprofits that get taxpayer funding—for things like food banks, housing support, disaster relief, health care, and more—to turn away queer people. If we have a court that believes that equality and religious liberty are at odds, which is far more likely if the next justice is not nominated by a Democrat, a ruling in this case could be a disaster.
If things go poorly in that case, it would take just a brief stroll (and a few years, and a couple million dollars) to bring a marriage case before the court. The Supreme Court has reversed rulings in the past—notably when they acknowledged that they were wrong to uphold laws banning sodomy—and they could do it again.
