LGBTQ people have worried that the Supreme Court could overturn its 2015 ruling legalizing same-sex marriage after a leak this week revealed the Court’s plan to overturn Roe v. Wade, the 1973 court decision protecting the right to abortion.
However, Douglas Hallward-Driemeier, one of the lawyers in the Obergefell v. Hodges case that legalized same-sex marriages, has said the large number of married same-sex couples will make the 2015 ruling difficult to overturn.
“We should be careful not to assume that Obergefell would be on the chopping block,” Hallward-Driemeier told Business Insider.
An estimated 560,000 same-sex couples in the U.S. are married, according to the US Census Bureau’s 2019 American Community Survey. Undoing all of these marriages would “make it very difficult to unwind” the 2015 court decision, the lawyer said.
“The reliance interests of already married same-sex couples are extremely powerful and would be an enormous obstacle, both practical and legal, to any attempt to undue Obergefell,” Hallward-Driemeier said.
In his leaked opinion overturning Roe v.Wade, conservative Justice Samuel Alito said that the Constitution only protects rights that are “deeply rooted in this Nation’s history and tradition,” and he specifically listed Obergefell v. Hodges as an example of a Supreme Court decision that protected a right that was not so deeply rooted.
He used similar reasoning to argue against same-sex marriage in his past dissent against the Obergefell case, Vox journalist Ian Millhiser noted.
However, Hallward-Driemeier disagrees with Alito’s take.
“Obergefell is an extension of a long-recognized, fundamental right to marry,” Hallward-Driemeier said. “If you’re going to overturn Obergefell, you have to perhaps overturn a bunch of decisions on which heterosexual couples have relied on as well.”
Indeed, the majority opinion in Obergefell v. Hodges held that same-sex couples have an unenumerated “right to marry.” The opinion, surprisingly, didn’t rest upon the arguably stronger legal argument that forbidding same-sex couples to wed violates the Constitution’s Equality Cause that guarantees all residents equal treatment under the law, Millhiser states.
But even though the court has a six-to-three conservative tilt and three justices who vocally oppose LGBTQ rights, Millhiser questions whether all five conservative justices would actually vote in favor of overturning LGBTQ rights, especially since some of those justices have expressed support for stare decisis, the legal doctrine that courts are bound by their previous decisions.
While one could argue that Alito’s abortion opinion shows a willingness to defy stare decisis and overturn old Court decisions, he may find himself among the minority of justices who are willing to do so against same-sex marriage.