From the moment President Donald Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court was announced, LGBTQ advocates have stressed that it poses a threat to marriage equality in the country, despite right-wing media claims to the contrary. On October 5, Justices Clarence Thomas and Samuel Alito indicated that the Supreme Court should “fix” its decision on same-sex marriage, demonstrating the potential consequences of a far-right lurch in the court if Barrett is confirmed.
On the first day of its 2020-2021 term, “the Supreme Court declined to hear a lawsuit from Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same-sex couples despite a federal court order.” Thomas issued a statement that was joined by Alito claiming that Obergefell v. Hodges, the 2015 Supreme Court case that legalized same-sex marriage nationwide, had “ruinous consequences.” They wrote, “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.”
These comments from Thomas and Alito signaled a willingness and desire to overturn Obergefell, which is just one of at least a dozen cases affecting LGBTQ people that may be impacted by a far-right Supreme Court, including whether they can adopt children without discrimination, access business services, serve in the military, play sports, and numerous other issues.
LGBTQ advocates responded by connecting the October 5 comments to Barrett's nomination to the Supreme Court.
Following Barrett’s nomination, however, right-wing media have been attempting to downplay the potential impact a far-right Supreme Court could have on the Obergefell decision.
On October 2, Cato Institute senior fellow Walter Olson wrote a blog for the conservative think tank titled “Would Judge Barrett’s Confirmation Call Same‐Sex Marriage Into Question?” The blog cited his 2018 Wall Street Journal op-ed to claim that “Obergefell wasn’t going anywhere.” Now, Olson added that the reasons outlined in his earlier piece “have if anything grown stronger.” He continued:
It’s true that on a separate issue — the Court’s approach to religious liberty, and in particular its ongoing efforts to grapple with the issue of religious exemptions in discrimination law — the replacement of Ruth Bader Ginsburg with Amy Coney Barrett could indeed make a substantial difference for real‐world outcomes. That set of issues deserves to be explored in a separate post. But it doesn’t implicate the right to marriage.
Additionally, a September 26 piece for right-wing outlet the Washington Examiner claimed, “No, a conservative Supreme Court would not be ‘catastrophic’ for gay and transgender rights.” The Washington Examiner piece also cited Olson’s 2018 op-ed, adding that “revisiting gay marriage just isn’t going to happen”:
Why? Olson cites the court’s commitment to the principle of stare decisis, a general reluctance to overturn precedent frequently lest its rulings lose legitimacy. The Supreme Court is particularly reluctant when overturning precedent would be enormously disruptive, as revoking the hundreds of thousands of lawful gay marriages since Obergefell would certainly be. In fact, Olson explains that the court really only fights to overturn precedent when it feels that precedent directly infringes on some constitutional liberties.
Even critics of the Obergefell decision would admit that it doesn’t infringe on anyone’s constitutional rights but rather, in their view, extends rights in a legally unjustified manner. Now, remember that there is widespread public support for gay marriage, even among Republicans such as Trump himself, and you’ll see why there’s little appetite even within the conservative legal movement for overturning Obergefell. Revisiting gay marriage just isn’t going to happen.
Curiously, neither of these defenses noted Olson’s final suggestion that Obergefell could be overturned by precisely the argument that Thomas and Alito made in their statement today. From Olson’s July 2018 op-ed:
If there is a danger for Obergefell over the longer term, it lies in some critics’ claim that gay marriage is somehow in unavoidable future tension with religious liberty. As Justice Samuel Alito noted in last month’s Janus decision, stare decisis is easier to abandon when a challenged precedent is thought itself to impinge on a constitutional right.
This “inevitable conflict with religious liberty” argument—which Justice Alito touched on in his Obergefell dissent—is unsound, most notably because any high-court majority inclined to overturn Obergefell would also have the votes to apply the First Amendment directly to secure whatever religious objectors’ rights it thought necessary to vindicate.
While Olson’s conclusion in 2018 easily dismissed the possibility that a far-right Supreme Court would overturn Obergefell, Thomas and Alito’s statement in 2020 suggests a court with a Justice Barrett would revisit that decision and “fix” it.