Which five justices will uphold marriage equality?

After the leaked draft of the Roe decision, the question must be asked. And the answer seems bleak.

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Let’s say that one day soon Texas Governor Greg Abbott or Florida Governor Ron DeSantis, or one of their attorneys general, issues an order claiming the state doesn’t recognize same-sex marriage, prompting a lawsuit. Or, via several other avenues, marriage equality is challenged in a state, and the case goes up to the Supreme Court.

However it happens, the moment will certainly arrive at some point. It will go up through lower courts where many judges have been installed by Donald Trump, who has turned the Supreme Court into an authoritarian court meant to consolidate power and create minority rule for the GOP.

So who will be the five justices who will uphold marriage equality?

I’ll get to that further down, but first we need to dispel the idea that it’s implausible that marriage equality will be overturned. There are in fact many respected legal scholars and observers who are warning about Justice Alito’s draft decision overturning Roe v. Wade, and how it offers a blueprint for overturning other rights guaranteed by the Constitution according to Supreme court rulings, such as marriage equality and contraception.

And some, like Dalia Lithwik at Slate, are reminding us that there were those who promised Roe was safe, and are already saying the decision won’t apply to other issues.

So be wary of those who are saying that, even with the draft decision overturning Roe, overturning the Obergefell marriage equality may be a bridge too far.

A New York Times legal analyst wrote earlier this month, for example, that “the court is seldom radically out of step with public opinion, and support for same-sex marriage is high and rising.”

But the numbers on marriage equality aren’t much different from the numbers on abortion, both of which are supported by two-thirds or more of Americans in many polls. And the polling numbers favoring gun reform are much higher, and yet the court has in the past weakened gun laws and seems poised to soon further weaken or throw out gun reform laws. So that’s not a convincing argument.

At Vox, Ian Milhiser notes something I’ve seen elsewhere: the outcome of overturning the Obergefell ruling would be far greater than overturning Roe, so the Supreme Court might think twice:

[A]nti-LGBTQ litigators need to do more than simply convince a majority of the justices that Obergefell should have come down the other way when it was originally decided. They also have to convince at least five justices to overturn the legal basis for hundreds of thousands of Americans’ existing marriages.

But this extremist court clearly doesn’t care about radical outcomes — and I’d argue banning abortion in half of the states is a radical outcome. And as legal analyst Mark Joseph Stern of Slate has noted several times on my SiriusXM program, we’ve already had a situation in which marriage equality was banned and those gay couples who were already married were recognized as married, while no other gay couples could get married.

This happened when Proposition 8 was passed in California in 2008. Conservatives didn’t seem to have a problem with creating two classes of gay people. While the California Supreme Court ruled that the ballot initiative and its passage was constitutional, it ruled that it didn’t have retroactive effect, and couldn’t void existing same-sex marriages. It’s not difficult to see this Supreme Court creating a similar scenario, sending marriage equality back to the states for the future but not retroactively.

So, who would be the justices to uphold marriage equality?

Well, we know Clarence Thomas and Alito won’t, as they have indicated it in several minority decisions. And Alito points to the court’s path to overturn Obergefell in the draft Roe decision, despite saying in another section that the Roe decision doesn’t apply to other decisions (boilerplate language which hasn’t made a difference in past decisions). The court’s liberals will uphold marriage equality — and that includes Stephen Breyer or, when he leaves the court, his replacement, Katanji Brown Jackson, whose views have been clear.

So that means two of the remaining justices would have to join the three liberals. Let’s look at each of them separately and see if we can find two.

Neal Gorsuch

Gorsuch has sent signals that are confusing to some people. Some even believe he supports LGBTQ rights. But make no mistake: Gorsuch believes states should be able to challenge the Obergefell ruling. That’s been clear for several years.

Gorsuch surprised many when he wrote the majority opinion in 2020 in which the Supreme Court ruled that gay, lesbian, bisexual and transgender Americans are protected from employment discrimination under Tittle VII of the Civil Rights Act — angering religious conservatives and the Trump base. This was Gorsuch actually being consistent, however, as an “originalist,” following the text of the Constitution or the text of a law as written.

Title VII bans discrimination on the basis of “sex,” or, as we’ve come to define it more clearly, gender. The writers of the law may have meant to protect solely cisgender women at the time, but the “text” now is easily perceived as protecting people from discrimination on the basis of sexual orientation or gender identity, since such discrimination is based on which gender someone identifies as or has intimate relationships with.

This was huge for LGBTQ rights, don’t get me wrong. But Gorsuch referred in his majority opinion to the likely probability that this would be narrowed in the future due to religious liberty concerns, allowing some or even all employers to turn people away based on “religious freedom,” something about which Gorsuch is obsessed. Meanwhile, he was able to be consistent in his originalism philosophy and perhaps not be seen as acting out of “antigay” animus when he does allow a challenge to marriage equality.

Back in 2017, I wrote about how Gorsuch made clear that he wants that challenge. He wrote the dissenting opinion, joined by Alito and Thomas, in an Arkansas case in which the Supreme Court reaffirmed marriage equality by denying Arkansas’s attempt to keep both gay parents off the birth certificate of the child born to one of them after the couple was married.

Harvard constitutional law professor Noah Feldman, who clerked for retired Justice David Souter, explained in an opinion piece on Bloomberg View that Gorsuch’s dissent, joined by Alito and Thomas, is “highly significant,” evidence of “a bid to become a hardline leader” and a “rallying cry for conservative resistance,” which will serve to embolden conservative judges to challenge Obergefell [bold added for emphasis]:

What this means for conservatives is that Gorsuch ― with two more votes on his side ― wants more states to refuse to apply Obergefell according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality...

It thus seems perfectly plausible that Gorsuch supports narrow employment protections with religious exemptions for LGBTQ people, while he also believes same-sex marriage should be sent back to the states.

Amy Coney Barrett

I researched and wrote on Barrett when she was first announced as Trump’s pick in 2020. The title of my piece was “Amy Coney Barrett will destroy marriage equality,” and you can read the entire piece. Just a smattering here [bold added for emphasis]:

..[T] he big problem with Barrett is that she is very hostile to LGBTQ equality in both the professional actions she’s engaged in and legal positions she’s put forth. She signed a letter with other Catholic professional women in 2015 written to Catholic bishops asserting that marriage “is founded on the indissoluble commitment of a man and a woman” and — this is the important part — the letter vowed, quoting the pope’s wishes, that the signers will be “an ‘incisive presence’ in the Church, and an ‘effective presence’ in the culture, the workplace, and wherever ‘the most important decisions are taken.’”

Barrett, while a professor at Notre Dame Law School before she was on the appeals court, took money from a legal group determined to overturn same-sex marriage, re-criminalize homosexuality in the the United States and around the world, equates homosexuality with pedophilia, and backs forced sterilization of transgender people abroad….

Barrett said about Chief Justice John Robert’s hostile dissent in the Obergefell marriage equality decision of 2015: “[Chief Justice Roberts, in his dissent,] said, those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen, but the dissent’s view was that it wasn’t for the court to decide...So I think Obergefell, and what we’re talking about for the future of the court, it’s really a who decides question.”

So Barrett is driven by religious zealotry in her work, has no problem with overturning precedent, and has already told us Obergefell was wrongly decided and should go back to the states.

John Roberts

Though Chief Justice John Roberts obviously was in the minority on Obergefell, writing the odious dissenting opinion in which he stated that such a decision should be left to legislatures, he has indicated he respects the precedent of Obergefell. In the Arkansas case in which Gorsuch wrote for the minority inviting states to challenge Obegefell, Roberts joined the majority which decided that Obergefell prevented Arkansas from engaging in discriminatory actions.

Roberts has similarly sided with the liberals on several other cases in the past two years, based on precedent, and he is reportedly not signed on to Alito’s draft opinion overturning Roe, even though Roberts is not an abortion rights supporter. So it’s doubtful he’d support overturning Obergefell. That means there are four justices that would uphold the marriage equality decision. But are there five?

Brett Kavanaugh

Some might see Kavanaugh as the best option for a fifth vote upholding marriage equality. But once you dig deeper — going over what wasn’t as prominent in his confirmation hearings as it should have been — the idea isn’t as compelling as it seems. Nor has Kavanaugh shown himself to be a renegade breaking with the conservatives on the court much.

It didn’t get a lot of attention during his hearings in 2018, but Kavanaugh was working within the Bush White House as a senior aide when George W. Bush was pushing a federal marriage amendment — and the records of his actions were kept from the Senate Judiciary Committee. Initially, the records were to be turned over, until Republicans, who controlled the committee, curiously decided they didn’t want them, and did’t want Democrats to see them. I wrote about this during the confirmation hearings early on:

GOP leaders recently decided they wouldn’t request records that Supreme Court nominee Brett Kavanaugh authored, generated or contributed during his time as White House staff secretary under President George W. Bush. And they’re not budging from this position.

Their change in course came after a July 24 meeting between Trump White House counsel Don McGahn and Republicans on the Senate Judiciary Committee, the substance of which isn’t known.

Vermont’s Senator Leahy, the ranking Democrat on the committee at the time, pressured Republicans on it.

Sen. Patrick Leahy @SenatorLeahy

Leahy To McGahn: What Was Discussed At Private White House Meeting That Led Republicans To Abruptly Change Course On Kavanaugh Documents? leahy.senate.gov/press/081718mc…

And Leahy specifically pointed to documents regarding, “A proposed constitutional amendment to define marriage as a union between one man and one woman.”

As I wrote regarding the refusal to hand over the documents, something which was unprecedented:

Kavanaugh, as White House staff secretary during that time, was certainly in the thick of these interactions and discussions. After Bush was re-elected, the president continued to give speeches in support of “a ban on same-sex marriage.” And controversy exploded in 2005 over revelations that the administration had paid right-wing columnists to promote its positions on marriage and the family.

By Trumpian standards, this scandal may seem like nothing, but the national uproar lasted for days. Bush was forced to address the issue, publicly urging his Cabinet secretaries to stop paying what amounted to thousands of dollars to radio host and columnist Armstrong Williams and syndicated columnist Mike McManus.

Also on the payroll: Syndicated columnist Maggie Gallagher, who received an additional $20,000 in a federal contract to write a report titled “Can Government Strengthen Marriage?” for a private group. She even testified before Congress promoting Bush’s policies. (In 2007, Gallagher would go on to co-found and lead the National Organization for Marriage, the driving force behind the movement against marriage equality that helped pass California’s Proposition 8 and other statewide gay marriage bans.)

Kavanaugh was there for all of it.

So why didn’t Republicans want us to see Kavanaugh’s statements and actions during that time?

Kavanaugh also revered the late Justice Antonin Scalia, a viciously homophobic justice who smeared LGBTQ people time and again using outrageous language. Kavanaugh gave a speech in 2016 calling Scalia a “role model” and “hero.”

In that speech, Kavanaugh also pointed to Scalia’s dissent in Obergefell (Scalia called the ruling a “threat to American democracy”) as an example of what he liked about Scalia’s judicial philosophy. Scalia, he said, viewed the court as having “no legitimate role ... in creating new rights not spelled out in the Constitution.”

I think that tells you a great deal right there. I could be wrong, and I hope I am. But it seems more than plausible that Kavanaugh as well as Barrett and Gorsuch would vote with Alito and Thomas, overturning Obergefell and marriage equality.

That is something we — and the media — must be prepared for. We certainly can’t fall back on the wishful thinking that tells us they’d never go that far. People said that about Roe. And here we are.