Court keeps its powder dry on same-sex marriage
By 
Remember lawless civil rights obstructionist Kim Davis? She’s the relatively rare litigant whose reactionary claims of religious freedom are too frivolous for even the Roberts Court:
Davis’ chief claim is that she should be able to raise a constitutional defense to the lawsuit against her, claiming a First Amendment right to deny the marriage license based on her own religious liberty. She lost that argument at every court below, because—and this is pretty obvious—an agent of the state who’s performing a government service has no right to unlawfully discriminate against members of the public. Nor does such an individual have any entitlement to take the law into her own hands, defy a court order, and decline to perform the basic functions of her office. Even hard-right judges who oppose Obergefell had to acknowledge that she had no constitutional leg to stand on.
After losing several rounds of litigation over the First Amendment issue, Davis’ lawyers decided to tack on a bigger request: Suddenly, they did not merely ask for exemptions from Obergefell; they wanted the Supreme Court to overturn it altogether. They raised this claim so late in the game that the appeals court ruled that it had been forfeited. But that did not stop them from including the frontal attack on Obergefell in their appeal to SCOTUS. The request to overturn marriage equality was tacked on to the petition like an afterthought, following the main arguments about religious freedom.
If Liberty Counsel’s primary goal was to draw attention—and, by extension, fundraising dollars—by taking on marriage equality itself, it worked: Media coverage of this case was wildly disproportionate to its (near-zero) chances of success. (The strategy may have prevailed because of widespread confusion about Supreme Court procedure: Just because the justices considered the petition does not mean they were seriously thinking about reversing Obergefell.) On Monday, though, the appeal predictably flopped. During Davis’ previous trip to SCOTUS in 2020, Justice Clarence Thomas at least seized the opportunity to write a brief missive against marriage equality, joined by Justice Samuel Alito. This time, though, not a single justice wrote a word. Nor did any justice express interest in taking up Davis’ plea. It was dead on arrival
What does this tell us? Nothing we didn’t already know. Thomas and Alito may still be gunning for Obergefell. But the other Republican appointees appear uninterested in killing it. Even Justice Amy Coney Barrett recently noted that the ruling has created “very concrete reliance interests” for same-sex couples that the court would not lightly disturb—contrasting it with Roe v. Wade, whose reliance interests she dismissed as illegitimate.
Let’s pause here to note that the assertion of the Dobbs majority that women did not have a material reliance interest in Roe is one of the most lunatic things to ever appear in the United States Reports, and it’s not for a lack of competition. But at least this is a case where the Court’s illogic is working in favor of better outcomes.
If this Supreme Court were considering the issue for the very first time today, it would almost certainly hold that the Constitution does not protect same-sex marriage by a 6–3 vote. But now that Obergefell is entrenched as precedent, and widely supported by Americans, they’ve shown no appetite for spending down their political capital to issue an unpopular ruling that could only hurt the Republican Party.
Instead, the right flank of the court has chosen to undermine gay equality in subtler ways. It has, for instance, granted some businesses a First Amendment right to discriminate against same-sex couples; compelled public schools to censor LGBTQ+ books; and ordered states to fund anti-LGBTQ+ private schools with taxpayer money. These justices are also poised to strike down restrictions on “conversion therapy” for gay and trans minors in more than half the states, undoing a hard-won triumph of the LGBTQ+ movement. And of course the court continues to uphold egregious discrimination against transgender Americans every chance it gets.
Obergefell, however, is not (yet) in the crosshairs. And it may not be unless Trump replaces another liberal justice and a state attempts to enforce a same-sex marriage ban that’s still on the books. Advocates are wise to remain vigilant. But they should not let this remote threat distract from more pressing perils to LGBTQ+ equality.
It would be premature to declare Obergefell safe — Republican elites are running steadily in the wrong direction on LGBTQ+ rights — but what passes for the median votes of the Court are choosing a more minimalist path to cutting away at those rights for now, which is better than the alternative.