I was thinking the ruling was safe, because who would have standing? Who is injured by allowing same-sex marriage?
But then I’m not sure whether the states could sue, because they see the ruling as usurpation of their powers.
A county clerk could refuse to issue a license, get fired and sue.
A same sex spouse going through a divorce might raise the issue, trying to avoid a property division.
There are probably many other scenarios.
Maybe there’s a contentious child custody case where the plaintiff (the biological mother of the child, or at least the one who underwent the pregnancy) points out that even though their spouse is legally presumed to also be the child’s parent, the fact that the spouse is also a woman clearly makes that a physical impossibility, hence the spouse should have no parental rights, post-divorce.
I could see SCOTUS deciding to issue some sweeping overly-broad ruling that ends up gutting existing protections for all marriages but in practice would only hurt same-sex ones.
It wouldn’t be “judicial activism” for anyone who agrees with it. Judicial activism only happens on rulings you don’t like.
It could be more direct than that: just have a state like Alabama again refuse to recognize same sex marriage licenses, or pass a new law outlawing same sex marriage. When the action is challenged in court, argue that Obergefell was wrongly decided and should be reconsidered. The District Court and the Court of Appeals will be bound by precedent (or should be; Baker v. Nelson didn’t bother them before) and rule against the State.
If the U.S. Supreme Court wishes to overrule Obergefell, it could grant cert and do so.
However, I think it highly unlikely. My guess is that certainly Roberts and likely Alito would vote to uphold Obergefell on stare decisis principles. Thomas would almost certainly overturn it. What would the new justices do?
I think only the most hardcore right wing (think Scalia, Thomas, Rehnquist) would vote to overturn a case only decided a year and a half ago. It is not good for the Court’s legacy to act like a legislative branch, voting one way or the other based upon its membership.
Then you have the equity problem: what is done with those same sex marriages performed in the interim? Void them all? That would be a harsh remedy even for the most strident opponent of same sex marriage. As was said above, with public opinion changing/having changed, it is not something that politicians would want to touch.
For better or worse, Obergefell will remain the law of the land. Roe/Casey? Not so much.
Wouldn’t overturning Obergefell be like overturning Roe, in the sense that it simply falls to all 50 states to legislate the issue as they see fit? In other words, it’s not like overturning Obergefell means that all SSMs are suddenly rendered null.
The problem is that (depending on which laws are passed at the state level) you could be married in one state(with all the rights), not married in another and subject to arrest in a third.
You are not free to move, travel or live where you want.
Arrest for having a non-legally-recognized marriage? :dubious:
Also, I don’t think the Scalia replacement would jeopardize Obergefell; at the least it would require Ginsburg to pass away or retire and be replaced by a William Pryor type.
Some states still have laws against SSM on the books, even though most people don’t agree with them. For instance here in Oregon, it’s still in the state constitution. Because of Obergefell, there was no pressing movement to repeal that. So there’d have to be a quick referendum to do that.
Ask Mildred and Richard Loving if you can be arrested for getting married someplace it’s legal but living somewhere it’s not.
Or rather, since Mildred died in 2008, ask Wikipedia aboutLoving v Virginia.
And it also affects whether your marriage is recognized by other countries.
Yeah, tens of thousands of marriages would be broken up, but not all of them would be. What’s the big deal!?
Many places have zoning ordinances about how many “unrelated” people may live in the same house. Marriage makes two people related.
I’m not sure if the penalty for breaking those ordinances includes arrest, but I’m sure resistance to enforcement (by, say, refusing to move) will lead to arrest for resisting arrest, because logic doesn’t apply to the world we live in.
The Lovings were arrested for breaking a law that forbid interracial marriages. There is not and never has been a law forbidding gay marriages. There would be nothing to be arrested for.
What makes you think certain states wouldn’t pass such given the chance?
There were sodomy laws targeting gays and state constitutional amendments banning same-sex marriage.
The states had 225 years prior to Obergefell to outlaw gay marriage and none of them did. No state constitutional amendments criminalize gay marriage they just said the state could not recognize them.
Considering that gays needed to stay closeted up until fairly recently and even the concept of same-sex marriage being tolerated is even more recent, I’m sure no one thought it needed. interracial marriage was a thing for centuries hence the existence of laws making it a crime.
As I mentioned, sodomy laws often targeted gays. Do you really think that attempting to make same-sex marriage a crime isn’t a possibility in some states?
That one’s still on the books, along with the one saying “It is the strong public policy of this state only to recognize as valid marriages from other states that are between a man and a woman.” [KSA 23-2508]
True, these are not criminal laws; there’s no penalty (yet) for pretending to be married when you are not. Your marriage simply doesn’t exist as far as the state of Kansas is concerned. (That does mean that attempting to claim benefits based on your alleged marriage, such as filing joint taxes, would open you up to criminal charges of fraud or tax evasion or the like.)
Mr and Mrs Loving were both arrested and sentenced to one year in jail (suspended). Can you name one person ever arrested for gay marriage? or one state that had a penalty for gay marriage?
Of course not.
I don’t know about actual arrests, but Indiana had a law that made it a “felony for a same-sex couple even to apply for a marriage license and a misdemeanor for a clergy member to solemnize such a marriage.” Another article here.