The MAGA Republicans on the Supreme Court will overturn marriage equality

A majority opinion last week made it clear, as the court's liberals urgently sounded the alarm. The only way we can save equality--and democracy-- is by re-electing Joe Biden.

Four years ago, as she was ascending to the Supreme Court, I wrote right here on The Signorile Report that “Amy Coney Barrett will destroy marriage equality.”

And now she’s appeared to confirm it’s coming, writing the majority opinion last week in Department of State v. Muñoz. Barrett and others in the majority were called out by the three liberals on the court in a powerful dissenting opinion—and even by Justice Neal Gorsuch to an extent, in a concurrence—who zeroed in on how Barrett and other conservatives unnecessarily, and disturbingly, stripped the rights of marriage in a ruling on an immigration case.

The case centered on Sandra Muñoz, a Los Angeles woman and U.S. citizen, who argued that her constitutional rights were violated when the federal government denied a visa to her Salvadoran husband, an undocumented immigrant.

As The Los Angeles Times notes, the case is “a major setback for Americans with foreign spouses because it explicitly rejects the idea that a citizen has a constitutional right to attempt to bring their noncitizen spouse into the country.”

More than that, as Justice Sotomayor wrote in her very strong dissenting opinion, which opened by quoting from the court’s Oberbefell marriage equality decision, the majority’s decision stripped marriage as a “fundamental” right that is a “matter of tradition and history.”

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Muñoz demanded to know the reason why her husband was denied a visa, since, as is standard practice, the State Department would not tell her. Via her lawsuit, the claims of which the Ninth Circuit Court of Appeals affirmed—ruling her husband should get a visa because not doing so infringed on Muñoz’s marriage rights—she found out the dubious reason: The government claimed her husband had tattoos that were gang-related, something an expert on gangs refuted.

And, as Gorsuch wrote, that should have been the end of the case. Muñoz got what she sought—the basis of the government’s denial—and, even as the Supreme Court overturned the Ninth Circuit’s decision, she and her husband could try to get a visa again.

There was absolutely no reason for the Supreme Court to go any further than that.

“That could and should have been the end of it,” Sotomayor wrote. “Instead, the majority swings for the fences.” Indeed, Barrett and the majority ruled that marriage is “not deeply rooted in this Nation’s history and traditions.”

As Sotomayor meticulously explained at length, that was a direct attack on Loving v. Virginia, which ended bans on interracial marriage, and on Obergefell, which ended bans on same-sex marriage.

Mark Joseph Stern of Slate, the legal scholar who comes on my SiriusXM program every week, weighed in on his Slate podcast with Dalia Lithwick:

The majority was hungry to go further, as Justice Sotomayor said in her dissent. The majority wanted to cut back the constitutional right to marry, so it weaponized this case as a cudgel against that right rather than practicing judicial restraint.

I think she’s preemptively mourning Obergefell and suggesting that it will be the next casualty of Dobbs [which overturned Roe v. Wade].

Really, there’s no other way to read it. She points out that in Dobbs, the majority said it was not undermining “the right to marry,” “the right to reside with relatives,” and “the right to make decisions about the education of one’s children.”

But the majority’s decision undermines all those rights! It takes away an American citizen’s right to live with their spouse and their children here in the U.S. And in doing so, it sabotages one of the key aspects of the court’s marriage ruling.

You read that right: “Preemptively mourning Obergefell,” along with the two other liberals, Justices Kagan and Brown-Jackson.

Back when I wrote about Barrett’s apparent agenda in 2020, I was glad to see Thomas B. Edsall, one of the voices of conventional wisdom in Beltway journalism, affirm my urgent warning in his New York Times column:

According to Michelangelo Signorile, a gay rights proponent who publishes the Signorile Report, “This is a five-alarm fire for LGBTQ Americans.”

In short, we are looking at a conservative movement determined to exercise the judicial authority it has struggled for decades to win against a Democratic Party consumed by a burning sense of injustice.

But those were few and far between. We’ve seen the punditry for years claim we’re overreacting, pushing back, for example, against the idea that the court would ever overturn Roe. And we’re still seeing that with regard to marriage equality now, even after Clarence Thomas's concurrence in Dobbs stating the court should next revisit marriage equality, bans on contraception and even the striking down of sodomy laws—and after the Muñoz decision last week.

Ruth Marcus, an associate editor and columnist at the Washington Post, wrote a column yesterday —"Are the justices re-examining same-sex marriage?”—about last week’s decision, and concluded we’re overblowing it:

So, how fearful should we be about the threat of same-sex marriage? If the question were to come up for the first time today, I doubt the court would reach the same result as in Obergefell and declare a sweeping new constitutional right.

At the same time—and yes, I know how cavalierly they tossed aside precedent in Dobbs—I doubt that even this court is about to upend the national legal landscape again and eliminate the right to marriage equality.

As Joe Sudbay noted on Bluesky regarding Marcus’s comments, “So many DC elite pundits just don't acknowledge how fucking corrupt, extreme, and political these right-wingers on SCOTUS are. They see them at cocktail parties!”

Even if we want to give Marcus the benefit of the doubt, her take is incredibly naive. Yes, this court, right this moment, may not overturn marriage equality. But they are surely laying the groundwork for the future. As Stern astutely notes:

I don’t think [Sotomayor] is overreacting. It’s all too easy to imagine this court overruling Obergefell in a few years and citing Barrett’s decision in this case.

The court could easily say, just down the road, that it already called Obergefell into question, and overruling it is the next logical step. I think that’s why Sotomayor also hinges her dissent on Dobbs, pointing to false assurances that the court would overturn abortion rights but go no further. We all knew that was bogus at the time.

So, marriage equality is on the ballot in 2024 in addition to so many other important issues. As horrifying as all this is, we can push back against the Supreme Court and the MAGA Republican agenda attacking our rights by re-electing Joe Biden.

Yes, it’s that simple.

Biden and the Democrats got the “Respect for Marriage Act” passed—a bill that foresaw the possible overturning of Obergefell, after Thomas’s concurring opinion in Dobbs. The law will not stop states from banning marriage equality in their own states if the court sent the issue back to the states, as it did with the issue of abortion.

But it codifies recognition by the federal government of same-sex marriage—for the purposes of Social Security survivorship, for example—and mandates that states that ban same-sex marriage in their own states must recognize marriages of gay and lesbian couples married in other states, even if their own residents go to another state to marry.

You can bet that if Donald Trump and the GOP get into power, they'll repeal the Respect for Marriage Act. More than that, only with Democrats and Biden in power can we pressure both to finally move forward on expanding the Supreme Court.

Ultimately, the only way we’re going to bring balance back to the court and save rights like marriage equality—and restore rights that have been lost—is to add justices to the Supreme Court. Biden hasn’t been keen on the idea—though support is growing among Democrats—but he wasn’t keen on ending the filibuster either, and now he supports that effort along with the majority of Democrats. We need to push him to see why expanding the court is the only right thing to do.

Again, as bad as all this sounds, we have the power to push back, to keep rights from being stripped, just by getting ourselves and everyone we know out to vote.