Whether or not the Anthony Kennedy’s retirement from the Supreme Court puts all of marriage equality at risk is an open question.
Kennedy was the key vote (and author) of the 5-4 Obergefell decision, paving the way for same-sex couples to wed nationally. With conservatives looking for an ideologue to replace Kennedy, his replacement is all but guaranteed to disagree with the ruling.
There are a number of reasons why the Court may not revisit the case so soon after deciding it, prefering to erode it with religious liberty exemptions. But just because something is unlikely doesn’t mean it’s impossible. That’s why Donald Trump is picking the next Supreme Court justice.
In fact, 30 states have amended their constitutions to ban same-sex marriage. Of those, 16 (shown in deep red on the map) also ban civil unions. Four states (shown in black) go so far as to ban any legal contract resembling marriage.
Right now, it doesn’t matter that those amendments are still on the books. They are moot because of the Obergefell decision. But if that decision were reversed, all of those amendments would immediately take effect again.
A preponderance of these states are in the South, as might be expected. But the reversal would be felt far more broadly than that. The nation’s largest state, California, still has its amendment on the books. So do such other major population centers as Michigan, Texas, and Florida.
The good news (relatively speaking) is that it’s possible to correct the issue before it becomes a problem. States can repeal constitutional amendments. Alabama is never going to repeal its amendment, but there’s enough public support for marriage equality to make such a move uncontroversial in many states. Out of an abundance of caution and as a statement about equality in general, those amendments should go.
It will take years for a case that might jeopardize marriage equality to bubble up to the Supreme Court. The decision would be emotionally and legally devastating, with wide-spread damage. But at least the damage could be somewhat limited. What would be left, though, is an America where you will be able to tell at one glance of a map where you are welcome and where you are not.
These are the states where marriage equality will end if Obergefell is overturned, unless they repeal their marriage bans.