Will the Supreme Court Reverse the Right to Gay Marriage Next Year?

Only Congress can overturn a Supreme Court decision, so holding onto the presidency, House, and Senate this fall represent the only way to quickly deal with this out-of-control rightwing Court...

Most extended families have queer relatives, friends, acquaintances, or co-workers. Many are in what our society refers to as a “gay marriage”; often these LGBTQ+ families have children of their own. And now six bigoted Republicans on the Supreme Court are laying the groundwork to take a vicious meat-axe to those families and their futures: the damage will be incalculable.

Here’s how we know:

If she could have raised a rainbow flag over her home to let us know what’s going on at the Supreme Court without deadly blowback, I’m guessing Justice Sonya Sotomayor would be doing it right now. Instead, she hoisted a metaphorical flag in her dissent to what, on its face, seems like an altogether unrelated case.

When Justice Kennedy wrote the decision in Obergefell v Hodges that legalized gay marriage nationwide, he built a solid case for marriage, gay or straight, as a positive benefit for American society. On phrase he used was:

“The right to marry is fundamental as a matter of history and tradition.”

Last week, Justice Sotomayor opened her dissent in Department of State v Muñoz with a that same quote from Kennedy’s Obergefell decision:

“The right to marry is fundamental as a matter of history and tradition. …

“There was a simple way to resolve this case. … Instead, the majority swings for the fences. It seizes on the Government’s invitation to abrogate the right to marriage in the immigration context and sharply limit this Court’s longstanding precedent.”

That “longstanding precedent,” of course, was (among others) Obergefell, legalizing gay marriage, one step away from “marriage in the immigration context.”

The Muñoz case was about an American woman (Sandra Muñoz) married to a man from El Salvador (Luis Asencio-Cordero) who’d lived together in the US for five years and had a child. When Luis visited El Salvador to apply for his permanent residency visa in 2015, however, he was not only denied the visa but was told he’d be denied re-entry into the US because the officer who interviewed him thought his tattoo was gang-related (he denies this and says it’s Catholic/religious, and a tattoo expert who testified at his hearing agreed but was ignored by the immigration officer).

His attorney wife, Sandra Muñoz, sued and the case ended up before the Supreme Court this year. Amy Coney Barrett wrote the main decision denying Asencio-Cordero entry to America, with Neil Gorsuch writing a concurring opinion.

“A citizen does not have a fundamental liberty interest,” Barrett wrote, “in her noncitizen spouse being admitted to the country.” She added — and here’s the tell — that she was ruling this way because such a right to marry and live with a noncitizen is “not deeply rooted in this Nation’s history and traditions.”

That “history and traditions” phrase used by Barrett, quoting both Clarence Thomas’ concurring opinion in Dobbs (which overturned the right to abortion) and Sam Alito’s opinion in McDonald v Chicago (which overturned gun laws because they didn’t exist at the time the Constitution was written), lit up the sky with fireworks for Justice Sotomayor.

She knew exactly what the Conservative justices meant when they collectively ratified that “history and traditions” language.

Which is why she’s trying to tell us what’s coming down the road: that her Republican colleagues on the Supreme Court fully intend, as soon as this election year is over, to overturn the federal right to gay marriage decided in Obergefell.

Gay marriage, after all, is also not “deeply rooted in this Nation’s history and traditions” any more than are abortion, gun control, pollution controls, or the right to marry and live with an immigrant.

Pointing out that the reasoning in the Muñoz decision is the opposite of that used in Obergefell to legalize gay marriage, implying it’ll soon be used to overturn Obergefell, Sotomayor continued in her dissent:

“Obergefell rejected what the majority does today as ‘inconsistent with the approach this Court has used in discussing [the] fundamental rights’ of ‘marriage and intimacy.’”

She then also pointed out the supposedly reassuring lies Alito laid on us all in his Dobbs opinion, instead telling us, essentially, all where this would end up in the next year or two:

“Despite the majority’s assurance two Terms ago [in Dobbs] that its eradication of the right to abortion ‘does not undermine . . . in any way’ other entrenched substantive due process rights such as ‘the right to marry,’ ‘the right to reside with relatives,’ and ‘the right to make decisions about the education of one’s children,’ the Court fails [to reassure us] at the first pass.”

In other words, she’s no longer putting up with the political BS coming from Thomas, Alito, Barrett, Roberts, Gorsuch, and Kavanaugh. She’s calling them out.

Next year will be a huge year for the Republicans on this hard-right Court, particularly because they feel the threat of congressional oversight (if Senator Dick Durbin ever gets off his ass) and therefore want to get as much of their agenda into law as quickly as possible.

The only thing that’s slowed them down this year, as I noted yesterday, is that they don’t want to show their hand in a way that could hurt Trump’s chances in the November election.

That agenda for next year will almost certainly include reversing the federal right to gay marriage: Thomas and Alito have been gleeful about telegraphing it in their decisions, and now Sotomayor is warning us in her dissents.

The six fanatic Republicans on this Court fully intend to destroy the marriages and families of about a million queer Americans to satisfy their own intolerant, dogmatic worldview, and Justice Sotomayor wants to make sure we all know that it’s coming. Probably next year, when the election is over.

Only Congress can overturn a Supreme Court decision, so holding onto the presidency, House, and Senate this fall represent the only way to quickly deal with this out-of-control rightwing Court.

Double-check your voter registration, particularly given that many of these same rightwing justices legalized Republican states blowing people off the voter rolls with no notice and for no reason other than living in Democratic areas, having not voted in the last election, or having failed to returned a postcard.

And this is just step one in their mission to remake America in the vision of Charles Koch, Leonard Leo, and their fellow billionaires.

The stakes have never been higher.