Since the announcement hit mainstream media the morning of August 11 that a case requesting the overturn of Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015, many in the LGBTQ+ community are reacting with shock that marriage equality could be reversed. Others feel like the writing on the wall has been there since Donald Trump was elected to a second term in the White House.
Technically, Trump is not involved in this case, although he has expressed support for Kim Davis’s rights and fellow Republicans did trot her out during a 2015 campaign rally following her release from jail.
While the Biden era-established Respect for Marriage Act (RMA) provides federal recognition for same-sex and interracial marriages, it does not prevent the Supreme Court Of The United States (SCOTUS) from potentially overturning the Obergefell v. Hodges decision that legalized same-sex marriage nationwide.
What could happen?
RMA ensures that all states recognize marriages legally performed elsewhere, but it never established a national, constitutional right to same-sex marriage. So if Obergefell is overturned, states could potentially ban same-sex marriage, though the Respect for Marriage Act would still require them to recognize existing marriages performed in other states. Most political pundits and 24-hour news talking heads are theorizing the court will aim for the “let the states decide” routine, which would likely result in a patchwork quilt of some 30-plus plus states enacting constitutional amendments that remain on the books.
A little history
A former Rowan County Clerk in Kentucky, Kim Davis, refused to issue marriage licenses to same-sex couples following the Obergefell ruling, citing her religious beliefs. Federal Court Judge David Bunning held Davis in contempt of court for refusing to comply with the court’s order to issue licenses, leading to her incarceration for six days.
She was sued by same-sex couples she denied licenses to – David Moore and David Ermold – and a federal jury awarded damages of $100,000 to the couple, finding Davis liable for violating their constitutional rights. She was also ordered to pay $260,104 in attorney’s fees and expenses to the couples’ lawyers. Davis and her legal team, Liberty Counsel, are appealing these rulings and continue to challenge the constitutionality of Obergefell v. Hodges.
How would the overturning of Obergefell impact the Carolinas?
Combined, the Carolinas have an estimated 28,000 same-sex married couples. None will suddenly become unmarried, but both North Carolina and South Carolina have constitutional amendments that would likely be reinstated in the event Obergefell v. Hodges is overturned. If SCOTUS opts to let states decide the fate of same-sex couples without a specific overturn, both North Carolina and our neighbor to the south – largely controlled by conservative Republican factions – will still probably see a return to pre-Obergefell days.
However, RMA mandates that all states, including North Carolina and South Carolina, continue to recognize all same-sex and interracial marriages performed before any potential overturn and after, which take place in a state that recognized or recognizes marriage equality. This also includes a decision not to overturn and a return-to-the-states action.
For any future same-sex marriages, if the court agrees to hear the case and takes any of the aforementioned actions, such states and territories as California, Colorado, Connecticut, the District of Columbia Hawaii, Iowa, Massachusetts, Nevada, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin, which do not have any restrictions on same-sex marriage, will probably be prepared to accommodate a new couple with a marriage certificate that would be recognized across the nation.