With the election of Donald Trump, who for sure will be able to put at least one person on the Supreme Court, is it alarmist for me to anticipate (or at least fear) a reversal of the same-sex marriage ruling in Obergefell v. Hodges? Will it require nothing less than a constitutional amendment to make it a permanent right?
If he were to raise Scalia from the dead and put him on the SCOTUS, it would not reverse their stance on SSM. The court, with him present, voted for it. If he were to pack the court and overturn the decision, it would still just go back to the states and the dominoes were falling left and right before the SCOTUS decision.
You are not going to get a constitutional amendment affirming SSM. Best not even think that option is on the table.
Oh for chrissakes - EVERYTHING is in trouble now, OKay!!
I think Roe v. Wade is in more trouble than Obergefell v. Hodges.
Moved from Elections to Great Debates.
Roe v Wade is not the controlling precedent on the issue.
I’m having trouble imagining a case that would come before the Supreme Court where overturning Obergefell would constitute an appropriate remedy.
What if billionaire dinosaurs start FORCING people gay?
Is there an historical precedent for the Supreme Court rolling back a civil right?
For SCOTUS to overturn it, we’d need Trump to appoint a Supreme Court justice to replace Scalia who believes along those same lines (someone like Alito, Roberts, and Thomas, who all dissented in Obergefell), and then we’d still need one of the justices who were in the majority opinion (most likely Ginsburg, Breyer, or Kennedy) to also die / retire and be replaced by a conservative / textualist / originalist. If / once all that happens, the conditions are probably ripe for it. Chief Justice Roberts read part of his dissent from the bench:
I imagine he’d relish the opportunity to right what he sees as a constitutional wrong.
Sure, the 1883 “Civil Rights Cases”…US v Stanley and a few others. The court ruled that the Civil Rights Act of 1875, which outlawed racial discrimination by private individuals, was unconstitutional.
Not yet. Even Trump’s Scalia replacement would vote identically to Scalia, it’s still 5-4. The issue is if there is another replacement–especially in the next two years. (If we can win the Senate in 2018, we can stop anything after that. I actually hope that at least one justice retires on purpose during that time.)
Still, these decisions do have inertia, and there is at least a tradition of not overturning recently established precedents. So there’s still hope then. I agree that the older decisions like Roe v. Wade are in bigger trouble.
And, yes, while aspects of Roe v. Wade are no longer controlling, it still counts. The controlling precedent was decided based on Roe. Planned Parenthood v. Casey is basically just a redesign of Roe, with some stronger foundations.
A repeal of legal same-sex marriage would be a political boon to Democrats, considering how public opinion has changed on this issue. It would be tragic, obviously, since it would negatively affect so many families and couples.
In Obergefell, someone was prevented by a law from exercising their own personal right, so they sued.
In today’s situation, who has standing to claim that they are being wronged by some law, and which law? What would their claim even be?
And, much more recently, gutted the Voting Rights Act.
No, it isn’t in trouble. Trump has always had progressive views on these matters. His company was very early in extending the same rights to homosexual couples as to heterosexual. He won’t attempt to reverse same-sex marriage.
It’s not up to Trump. It’s up to the Supreme Court–although I think more than one justice would need to be added, considering what happened while Scalia was with us.
No cite, but I’ve read a few pieces that suggest Roberts would be likely to respect precedent in such a scenario.
Our only hope is what Bill Maher said about Ginsberg.
Sure, if it was up to Trump it would be over. But is Trump going to appoint a liberal Supreme Court Justice? Or is he going to appoint another Scalia, and another Scalia after that?
Based on his Cabinet picks, he’s going to nominate a fire-breathing conservative. Not because he cares about same sex marriage, but because he cares about keeping the religious right on his side while he cuts taxes for the rich.