Since the cases of Windsor (which found the Defense of Marriage Act unconstitutional) and Obergefell (which recognized same sex marriage) were decided in their favor in the U.S. Supreme Court, some members of the LGBT community have gained a new sense of equality under the law. Some, however, still fear that the Supreme Court might move to overturn these groundbreaking decisions as its composition changes.
According to Mark Joseph Stern, writing for Slate, the possibility of reversal looms large. He writes that following the Windsor and Obergefell decisions, states are looking for ways out.
Yet just two years later, gay Americans’ marriage rights are once again under attack in conservative states—with the encouragement of some Supreme Court justices. It’s now clear that not all states, and certainly not all courts, view same-sex marriage as a settled issue. In fact, it’s increasingly apparent that marriage equality opponents have a long-term plan to roll back, and eventually reverse, the signature achievement of the U.S. gay rights movement.
In 2015, the Arkansas Supreme Court ruled that same-sex marriage decisions did not require the state to list same-sex parents on their children’s birth certificates. On June 26th, the Supreme Court ruled that this was not so. In Paven v. Smith, they reversed the state court’s ruling, stating that birth certificates are a benefit of marriage and that married same-sex couples should be listed on their children’s birth certificates. Justice Roberts, who wrote a strong dissent in Obergefell, did not specifically dissent in the Arkansas case. This could be good news, but the case was decided per curiam, without a single author, and Justice Roberts joined the majority in this case without offering his own opinion. As Stern states in Slate, “His silence could mean that he accepts Obergefell—or it could mean nothing at all.”
Aligning with a number of Southern states’ efforts to delegitimize same-sex marriage, courts in both Texas and Louisiana have put forward rulings and statements that would roll back these rights. The Texas law would deny spousal benefits to same-sex couples, giving them a marriage license but little else. In Louisiana, State Supreme Court Justice Jefferson Hughes III announced in 2015 that he would never apply Obergefell. Both actions have left the door open for states to discriminate against same-sex couples.
Timothy Holbrook, writing for CNN, is more optimistic about future court decisions on these issues. As he considers the backlash from the states against the Obergefell and Windsor decisions, the recent spate of “bathroom bills,” as well as the attacks on parental rights that are clear in the Arkansas and Texas actions, Holbrook views the Paven v. Smith case as a positive on the part of Justice Roberts. He states, “Despite three dissents, Chief Justice John Roberts joined the majority decision, indicating that he may be a swing vote in protecting same-sex marriage in the not too distant future.”
What has been overlooked in the discussion of the Arkansas case is the vote of Roberts. He joined the per curiam opinion, yet he dissented in Obergefell. If he continued to oppose Obergefell, he easily could have joined the dissenters in the Arkansas case.
But he didn’t, which indicates he may be critical in protecting same sex marriage equality. To begin, the chief justice seems to be concerned with his legacy and the broader implications of a partisan court undermining the legitimacy of the judicial branch. He surprised many—and angered several conservatives—by twice saving President Barack Obama’s Affordable Care Act. He may therefore be leery of potentially disrupting what has become settled law.
Clearly, there is no real sense of where Justice Roberts will land when the makeup of the Supreme Court changes. Justice Kennedy, the author of the Obergefell decision, had indicated a desire to retire in the near future. His replacement will most likely fall in line with the judicial temperament of Justice Neil Gorsuch, who has already demonstrated his very conservative leanings in his short time on the court.
Will Justice Roberts become the “swing” vote when it comes to upholding gay rights? Stern says we shouldn’t count on him: “Marriage equality is secure today. Obergefell will not fall tomorrow. But it is on shakier ground than most Americans probably realize. If Kennedy retires, the future of same-sex marriage will rest in the hands of a man who vehemently opposes gay rights. And nobody should count on the chief justice to uphold a decision he hates.” On the other hand, Holbrook counters, “A new justice could easily vote to overrule Obergefell. But the chief justice’s vote in Pavan may be a harbinger of a willingness to protect the hard-earned rights of marriage equality. At least it is a glimmer of hope to the LGBTQ community.”—Carole Levine