(Photo by Ted Eytan / Flickr)
If you’ve been paying attention, you know the Supreme Court is gunning for Obergefell, the landmark case that held there is a federal constitutional right to same-sex marriage. And it’s not a matter of tea leaf reading that leads to that conclusion. It’s Samuel Alito’s unhinged dissent in the case — that he still can’t let go of. And Alito’s majority opinion overturning established precedent guaranteeing the right to reproductive freedom in Dobbs that creates parallels between the right established in Obergefell v. Hodges as similar to reproductive freedom as they’re not “deeply rooted in history.” Plus there’s the concurrence written by Clarence Thomas that explicitly says the Court should “reconsider” its jurisprudence on marriage equality (as well as the Court’s holdings on consensual sexual contact and contraception).
And what we’ve learned from the current Court is, they’re totally chill with shredding precedent and issuing decisions wildly out of line with what the majority of Americans believe as long as it fits *their* vision of what the country should be. So, yeah. Even though 69% of Americans support gay marriage, we should absolutely be worried about the rights enshrined in Obergefell.
Now some states are trying to get ahead of the Supreme Court’s remaking of the country. This election day in California, Colorado, and Hawaii, voters will have the opportunity to undo some problematic language in the states’ constitutions from the aughts. All three states, at one point, codified a narrow version of marriage that excluded same-sex couples. And activists would really like them off the books, just in case the Court makes good on its thinly veiled threat to overturn Obergefell. As reported by HuffPost:
California’s Proposition 3 would repeal and overwrite the state’s ban on same-sex marriage that’s still in California’s constitution. In 2008, the voters in the state approved Proposition 8, which defined marriage as between a man and a woman and banned the state from recognizing same-sex marriage. It was made void after the Supreme Court’s 2013 decision in Hollingsworth v. Perry and allowed the state to resume same-sex marriages.
Colorado’s Amendment J similarly seeks to remove this narrow definition of marriage from the state constitution. And in Hawaii, voters will answer Question 1, which asks if voters want to remove language from the state constitution that gives Hawaii lawmakers the authority to reserve marriage only for “opposite-sex couples.”
“As someone who fought to establish and protect marriage equality in Hawaii for more than a quarter of a century, I refuse to stand by and watch this Court take a hatchet to rights won that had previously been denied,” wrote Rep. Jill Tokuda (D-Hawaii), in support of Hawaii’s amendment. “If this Court follows through on its threat to revisit Obergefell, we could easily see nationwide rights to same-sex marriage restricted again.”
Cleaning up state laws that were rendered moot by Obergefell stops the threat of zombie laws coming back to haunt folks in California, Colorado, and Hawaii. But there’s still a lot at risk, particularly for those in red states, if the Court turns back the clock on gay rights.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].