Obergefell was decided by a margin of one vote: 5-4. Two of the justices in the majority have since left the court — Kennedy retired in 2018, and Justice Ruth Bader Ginsburg died last month. Today, as much as marriage equality has become broadly accepted, LGBTQ rights are far from assured. In fact, there is a very real possibility that millions of American lives could be upended — and laws could be written and unwritten — if Amy Coney Barrett is confirmed to replace Ginsburg and if President Trump and Vice President Pence win another four years in office.
That terrifying prospect was underscored on the first day of the court’s new term. Two of the dissenters in Obergefell, Justices Clarence Thomas and Samuel A. Alito Jr., took the opportunity to reaffirm their continuing hostility to the ruling. Thomas opined — in an opinion accompanying the denial of a writ of certiorari in another case (and joined by Alito) — that with its decision in Obergefell, the Supreme Court had “undemocratically . . . created a problem that only it can fix.”
In short, a conservative Supreme Court might be poised to revisit marriage equality. That’s not a certainty: While Chief Justice John G. Roberts Jr. originally dissented in Obergefell and might be expected to reconsider the ruling, he did not join the Thomas-Alito statement. Nor did Trump’s first two nominees, Neil M. Gorsuch and Brett M. Kavanaugh.
But Barrett’s confirmation would tilt the court even more strongly in that direction. Barrett has strongly suggested that laws on marriage equality should be left to state legislators, not the federal courts. Quoting Roberts’s dissent in a 2016 lecture, she said, “Those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen, but the dissent’s view was that it wasn’t for the court to decide. . . . So I think Obergefell, and what we’re talking about for the future of the court, it’s really a who decides question.”
In that same talk, she questioned whether federal anti-discrimination law includes protections for transgender Americans, as the court later decided in Bostock v. Clayton County. “Maybe those arguing in favor of . . . transgender bathroom access are right. That’s a public policy debate to have,” she said. “But it does seem to strain the text of the statute to say that Title IX demands it.”
We remember clearly what life was like before the day that the right of same-sex couples to marry became the law of the land, and the days before other cases on crucial everyday issues were decided. We were able to have, at most, what Ginsburg called “skim-milk” marriages — marriages in which, depending on state laws, we were not recognized as the families that we are; we could not file taxes jointly, or make medical decisions for one another, or, after a death, be treated legally as the surviving spouse. We remember when we could be evicted from our apartments or fired from our jobs for being who we are, or arrested for loving our same-sex partners.
We fear, with good reason, a Supreme Court — whose increasingly rightward bent could likely not be curbed for decades — whose clear goal would be to undermine years of progress.
An attack on LGBTQ rights could lead to allowing business, government contractors and even government employees to treat us as second-class citizens. Taxpayer-funded emergency shelters could refuse to place married same-sex couples in family housing, and adoption and foster care agencies could turn their backs on youths in need rather than certify the homes of same-sex couples. And they could gut access to affordable health care for a community that already faces disproportionate obstacles to care.
Notably, the Trump administration and scores of anti-equality officials support each of these outcomes.
For the past four years — and despite confirmations of hundreds of conservative judges around the country — some of us concluded that the equality of our marriages and the everyday rights that we have fought so hard for were now precedent and that we would be left alone. We also told ourselves that widespread support from our neighbors, colleagues and families would deter attacks. None of us can feel that way anymore. We must vote as if our lives depend on it. We do not make this argument lightly. It is clear that this is not a drill; this is a real emergency.