Something strange is happening among the usually reticent Supreme Court justices who rarely speak about their decisions or deliberations leading up to them outside of the four corners of their official documented rulings.
But several, presumably with the blessing of Chief Justice John Roberts, have decided to depart from that long-standing practice and engage in a public relations onslaught to allay fears that they’re about to overturn the 10-year-old “same sex” marriage ruling of Obergefell v. Hodges, which owes its origin to litigation here more than 50 years ago.
The same sex saga began in Minneapolis in the early 1970’s when a Minneapolis couple, University of Minnesota student body president Jack Baker and librarian Michael McConnell sought but were denied a marriage license by the Hennepin County authority in downtown Minneapolis in charge of issuing them on grounds of the Minnesota law restricting marriages to opposite gender couples, a man, and a woman.
They sued, but their case was dismissed by a judge in the same building, and the state Supreme Court across the River in St. Paul upheld that declination, deeming the restrictive statute constitutional, relying in part on a passage in Genesis in the Old Biblical Testament.
They took their case to the U. S. Supreme Court, which in 1972 dismissively threw out that lawsuit in a curt one sentence decision telling them they had no colorable claim.
Fast forward four decades and Minnesota voters in 2012 narrowly rejected a proposed amendment to the state constitution to solidly in perpetuity the “same-sex” bar in the face of grieving detention nationwide, along with court rulings and legislation in a handful of jurisdictions permitting those unions.
Minnesota joined the bandwagon a year later with enactment of a state law permitting intra-gender marriages, and in the summer of 2013, Minneapolis Mayor R. T. Rybak officiated at the state’s first same–sex marriage in Minneapolis.
That movement preceded the landmark Obergefell ruling that imposed the Constitutional bar against all state laws prohibiting save-sex marriages. Since then, approximately 820,000 of them have occurred around the country, including more than 10,000 here in its birthplace, Minnesota.
But a movement is afoot to turn the clock back to the Genesis days, exemplified by a petition filed with the U. S. Supreme Court this August by Kim Davis, the poster child for opposition to same-sex marriage, who was hit this year with a $100,000 – plus verdict in her home state of Kentucky for failing to carry out her duty as a clerk of court there to grant a marriage certificates to a post – Obergefell same gender couple. She is now asking the High Court to do what just what Justice Clarence Thomas implored his colleagues to undertake in an aside three years in another case and “reconsider” and bury the Obergefell decision.
Related: Supreme Court Sets Date to Consider Same-Sex Marriage Case (Oct 23, Newsweek)
There has been a growing fear within the LGBTQ community and among their supporters, and a hope by many of their foes, that his colleagues may, indeed, take him up on it as only four of the nine justices are necessary to agree to hear a case and, of course, five to decide one.
The tumult has prompted the High Court to send out a few of its emissaries to assure that the tribunal has no such thing in mind. Calming the concerns of same-sex proponents and lowering the expectation of their rivals is particularly needed because of the way the justices sent shockwaves through the country 3-1/2 years ago with substantial political impact still resonating from their decision in Dobbs v. Jackson Women’s Health Organization eradicated the 49 year-old precedent of Roe v. Wade granting women a Constitutional right of abortion.
But this time around, there’s nothing to see here, so to speak, according to the PR campaign unofficially launched by the High Court. First, Samuel Alito the author of the Dobbs decision and other precedent busting rulings, indicated in a friendly interview a couple weeks ago that he has no appetite for overturning Obergefell. Around the same time, former Justice Anthony, the thoughtful middle-of-the road jurist who cast the deciding vote in the 5-4 Obergefell case and authored the Court’s ruling, emerged from a quiet retirement to bemoan some of the Court’s current practices and rebuke his former judicial colleagues on the bench and the new ones. Then, Justice Amy Coney Barrett, stepped forward this weekend in an unusual question – and- answer session with the New York Times to discuss her judicial philosophy and intimate that reversal of Obergefell is not in the cards.
But don’t bet on it. Even if the justices do not outright overrule that decision, with three of the justices in the slender majority no longer on the court–replaced by three appointees-of President Trump–there are plenty of ways they can slice –and – dice the prior ruling and LBGTQ rights in general, and the already have done so in restricting some marital same-sex child adoptions and transgender medical treatments.
Further, in his call to capsize Obergefell, which none of his colleagues rebuked at that time, Justice Thomas also urged them to do the same to two other cases establishing the right or access to contraceptives and the right of consensual intimate relations between consenting adult gay and lesbian adults.
So, while it may be reassuring that some members of the High Court are disavowing any intention to abort the Obergefell “same-sex” ruling, it hardly signifies that it and other rights are not in jeopardy from the current composition of that tribunal.
