This blog told you in December that the 6-3 Supreme Court will overturn Roe v. Wade, and the only thing unclear about that is whether it will happen this June or in next year’s term. Now we are here to tell you that after Roe is gone, the next target increasingly appears to be Obergefell v. Hodges, the 2015 case that legalized marriage equality. Republicans have been hinting for months that they want Obergefell gone, and here are the latest bleak clues.
Most recently, Sen. John Cornyn (R-Texas) said that the high court wrongfully invented the right to same sex marriage. He made this point not once but four times during the Supreme Court confirmation process of now-Justice Ketanji Brown Jackson—during both of his questioning periods, once during committee votes, and once more on the Senate floor. This man isn’t even facing a Senate primary until 2026, and he still felt the need to make his homophobic views very clear.
Then there’s Tennessee lawmakers introducing a pair of bills last week to establish a new class of marriage between only a man and a woman. The lawmakers “forgot” to add an age of consent for this type of marriage, opening the door to child marriages, which is very funny for a party obsessed with calling its opponents pedophiles. The bill’s Republican sponsor told a local news site that the bill gives “an alternative form of marriage for those pastors and other individuals who have a conscientious objection to the current pathway to marriage in our law.” This is an admission that they’re trying to get around binding Supreme Court precedent. (Alabama did a different trick in 2019 to appease homophobic judges who didn’t want to issue marriage licenses—the legislature simply replaced the licenses with marriage certificates that the couple fills out.)
The effort to take down Roe is also connected to dismantling gay marriage in a few ways. First, the evil genius behind the bounty-hunter portion of Texas’ six-week abortion ban, Jonathan Mitchell, espouses a fringe legal theory that the Supreme Court doesn’t erase laws it decides are unconstitutional, it just leaves them dormant. States would have to repeal their laws to really make them go away.
Building off that argument, another Texas Republican wrote to the state Attorney General in October that Texas never repealed its ban on gay marriage, and is asking the AG whether this allows private citizens not to recognize same-sex marriages. After seeing this letter from the Texas state rep., one of the lawyers who helped win the Obergefell case said he now believed that same-sex couples should indeed be worried about their marriages.
And Mitchell himself wrote in a brief to the Supreme Court that both marriage equality and sex with a same-sex partner (Lawrence v. Texas, 2003) are court-invented rights that are “just as lawless as Roe” and invited the court to overturn them all. So there’s that!
As Michigan Attorney General Dana Nessel explained to Jezebel, overturning Roe would weaken cases like Lawrence, Obergefell, Loving v. Virginia (which legalized interracial marriage), and even Griswold v. Connecticut, the 1965 ruling that allowed married couples to use birth control. That’s because all of these cases are based on a right to privacy first found in Griswold and the precedents build on each other. Each case is like a Jenga block, and removing one could make the whole tower topple.
We don’t know exactly when or how Obergefell will be challenged, but the assault is starting, and it’s obvious. The Supreme Court has already accepted a case about anti-discrimination laws for next term which could rip a giant hole in protections for gay couples. It’s the case of a web site designer who wants to be able to post on her site that she refuses same-sex couples as clients, in defiance of a Colorado law. She claims the law violates her First Amendment right to free speech. In even accepting the case, the court has signaled that the chipping away has already begun.