Arizona’s revived abortion law is a stark reminder that marriage equality is no longer safe

When the Arizona Supreme Court reinstituted an anti-abortion law passed in 1864, the response was shock.

How could a law from before Arizona was even a state suddenly control the lives of women? The short answer: Because the court was controlled by Republicans with an agenda made possible by the U.S. Supreme Court’s decision to overturn Roe v. Wade in 2022.

Related:

Arizona Supreme Court upholds near-total abortion ban first enacted in 1864

Arizona wasn’t even a state when the law was first written, and now it is being used to essentially eliminate reproductive freedom in the state.

The longer answer is that lots of laws are on the books collecting dust even though they have been invalidated by the courts or superseded by other laws. No one got around to repealing them. They are a bit like old wallpaper that someone just slaps paneling over and forgets about over time.

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Unfortunately, the Arizona case is a reminder that it’s not just abortion laws that can suddenly come back to life. A majority of states have anti-marriage equality laws on the books from 20+ years ago when the right was using ballot initiatives to take away LGBTQ+ rights.

The good news is that these laws are moot since the Supreme Court legalized marriage equality with Obergefell v. Hodges in 2015. The bad news is that the current Supreme Court has made it clear with its abortion ruling that precedents don’t matter much. Justices Clarence Thomas and Samuel Alito have been explicit in saying that they think Obergefell was wrongly decided, broadly hinting they would like to take another crack at the issue.

The passage of the federal Respect for Marriage Act does offer some protection. It repeals the noxious Defense of Marriage Act, Bill Clinton’s attempt to innoculate himself against attacks from the right, and requires states to recognize any marriage performed in another state.

What it doesn’t do, however, is require a state to allow marriage equality within its own borders. In short, it sets up the potential for a version of the current abortion nightmare playing out across the nation. Conservative states effectively outlaw the procedure, forcing women to travel to states where it is allowed – if they have the resources to do so.

If you think that, given the chance, a broad swath of Republicans leading Southern states are not interested in returning to the pre-Obergefell days, you would be sorely mistaken. And all of those states have something on the books that would allow them to do so.

It’s not just conservative states. California, which prompted the first Supreme Court ruling in favor of marriage equality, still has its anti-marriage constitutional amendment, even if it’s not enforceable. This year, voters will finally have a chance to supersede it by voting on an amendment that would enshrine marriage equality as a constitutional right.

Getting rid of moot laws is a difficult exercise. It takes up time that politicians think is better spent on more pressing issues. Frankly, the odds of the laws ever coming back to haunt you are fairly slim. But as Arizona proves, the odds aren’t zero either. Fingers crossed, all those anti-marriage laws and state constitutional bans will just keep moldering and never be a problem. Yet with the current Supreme Court, you can never say never.