Can the Supreme Court Overturn Marriage Equality?

Our right to marriage equality was confirmed by the United States Supreme Court on June 26, 2015, in the case of Obergefell v. Hodges. Fast forward six years and thousands of marriages later. Several Justices have been added to the Supreme Court, and they are not known for their support of LGBTQ+ equality. Some of my clients and friends have questioned whether the Supreme Court could overturn the Obergefell decision and take away marriage equality. I’ve paid close attention to discussions among my legal colleagues around this question and here’s my takeaway: marriage equality is safe, as a whole, though there may be religious exemptions carved out. Certainly, marriages that have already taken place are secure. 

There are several reasons to believe marriage equality is secure.

1. Timing: It’s only been six years since the Supreme Court decision in Obergefell, and the Court does not have a history of overturning itself so quickly. 
2. Opportunity: The Supreme Court has heard several cases in which it could limit LGBTQ+ equality, and it declined to do so in most of them. In fact, last year the Supreme Court actually expanded employment protections based on sexual orientation and gender identity in Bostock v. Clayton County. Notably, the Court’s decision was written by Neil Gorsuch, who was put on the Court by then-President Trump. Also, just a few weeks ago the Supreme Court declined to hear a case from a florist who had refused to do flowers for a same-sex couple’s wedding. The Supreme Court let stand the lower court’s ruling against the florist. The Supreme Court also declined to take the appeal from a school system wanting to discriminate against a transgender student in Grimm v. Gloucester County School System and left in place a lower court ruling in the student’s favor. 
3. State Cases: Many states, including North Carolina and South Carolina, gained marriage equality through state court decisions separate from (and before) Obergefell. The Fourth Circuit Court of Appeals, which covers North Carolina, South Carolina, Virginia, Maryland and West Virginia, decided Bostic v. Schaefer in 2014, paving the way for marriage equality in those states. Marriage equality came to North Carolina shortly thereafter in General Synod of the United Church of Christ v. Reisinger and Fisher-Borne v. Smith. South Carolina also gained marriage equality in 2014 in Condon v. Haley. The bottom line is that even if (and that’s a huge if) the United States Supreme Court does somehow overturn its own marriage equality decision, the court decisions based on state law are still intact. The states that gained marriage equality through state law would also remain.
4. Multiple Avenues: While the current makeup of the United States Supreme Court is concerning, we always have other avenues to equality. When the Supreme Court has been hostile to LGBTQ+ equality in the past, the movement has turned to state courts and legislatures and gained victories there. The coordinated movement for marriage equality began in the 1990s with a decision in Hawaii and followed a path throughout the United States with state court decisions and state laws. 
5. You Just Never Know: Finally, throughout the history of the United States Supreme Court there have been justices who have made decisions differently from what was expected of them. There have also been justices who have evolved and even changed how they view things. There is hope that some of the current Supreme Court Justices will come around to equality.

For these reasons, my colleagues and I believe marriage equality is safe. If you are married now, you are married. If you are thinking of getting married, get married. Enjoy your lives together, happily ever after.

Connie J. Vetter is the go-to LGBTQ+ Law attorney in the Charlotte area for over 25 years. Her legal practice focuses on the needs of Lesbian, Gay, Bisexual, Transgender and Queer individuals and couples as well as the larger community. Her practice areas include Wills, Medical Directives, Estate Planning, Adoption, Surrogacy, Name & Gender Marker Changes and Adult Guardianship. In addition, she is a mediator for the U.S. Postal Service. She can be reached at 704-333-4000 (talk/text) or CJVLaw.com.

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