On Monday, the Supreme Court turned down a request to reconsider its landmark marriage equality case. At first glance, this appears to be a clear victory for LGBTQ+ advocates.
Ten years ago, in its 5-4 ruling in Obergefell v. Hodges, the court found that “The fundamental liberties protected by the Fourteenth Amendment extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. Marriage,” it said, “is a centerpiece of social order and fundamental under the Constitution.”
Restrictive marriage law, the majority found, “harm and humiliate the children of same-sex couples; burden the liberty of same-sex couples; and abridge central precepts of equality.”
But for President Donald Trump and his MAGA allies, ending marriage equality has long been an important goal. Outlined in Project 2025, it has been moving along without much fanfare.
History teaches us that the battle for equal justice under the law is never really over — that it may take a long time before social movements can achieve their goals. Progress is often slow, and success comes only after repeated failures.
History teaches us that the battle for equal justice under the law is never really over — that it may take a long time before social movements can achieve their goals. Progress is often slow, and success comes only after repeated failures.
Take the effort to outlaw racial segregation in public schools that culminated in the Supreme Court’s landmark Brown v. Board of Education decision. As Georgetown University Law Center professor Mark Tushnet explained, “Brown was the culmination of a sustained campaign of strategically designed litigation… Lawyers subsequently took the strategic litigation campaign they saw ending in the triumph of Brown as a model for their own causes, and developed strategies to use litigation in the service of a wide range of causes: women’s rights, prison reform, abolition of capital punishment, protection of property rights, and the undermining of affirmative action, among others.”
You could add to that list the 50-year campaign that led to Dobbs v. Jackson, the case that overturned Roe v. Wade in June 2022 and ended the constitutional protection of reproductive rights. Dobbs provides an ominous warning about the eventual fate of marriage equality.
Despite the court’s refusal to reconsider Obergefell, the right’s campaign to overturn the decision is not over. Supporters of marriage equality should refrain from resting on their laurels and mobilize to resist MAGA’s ongoing campaign to take away another right from the American people.
In framing arguments that Obergefell damaged democracy by removing the question of whether to allow marriage equality from the people and their representatives, conservatives are building on the strategy they used to successfully overturn Roe.
Like the anti-abortion crusade, the effort to end marriage equality is a long game.
The first shots were fired by Justice Clarence Thomas in his stinging dissent to Obergefell. “The majority’s decision today,” he wrote, “will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing ‘due process’ before a person is deprived of his ‘life, liberty, or property.’”
Thomas was clear: He wanted to ensure the Constitution could not be used to expand rights. He was, however, happy to see it used to restrict them.
Thomas called the idea that liberty was referenced in the due process clause a “dangerous fiction,” warning that so-called “substantive due process exalts judges at the expense of the People from whom they derive their authority.” He also saw in the Obergefell decision a “threat [to] the religious liberty our Nation has long sought to protect” and predicted it “will have inestimable consequences for our Constitution and our society.”
Almost before the ink was dry on Thomas’ opinion, conservative and religious activists began their counterattack on Obergefell. Spearheaded by a “pro-family activist organization” called Mass Resistance, which was founded to “confront assaults on the traditional family, school children, and the moral foundation of society,” the campaign has already shown success.
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Legislators in nine states have sponsored laws designed to limit or roll back same-sex couples’ right to marry. Several of the bills explicitly call on the Supreme Court to overturn Obergefell. Others seek to carve out a special kind of marriage called “covenant marriage,” which would be restricted to one man and one woman.
Returning to the fray in 2022, Thomas used his concurring opinion in Dobbs case to again denounce “substantive due process” as “an oxymoron that lack[s] any basis in the Constitution.” He regretted that his colleagues had not gone further to roll back “all of this Court’s substantive due process precedents.”
Obergefell, he wrote, was one of those precedents. That’s why people like Hillary Clinton, the former secretary of state and 2016 Democratic presidential nominee, have warned that the Supreme Court “will do to gay marriage what it did to abortion.”
The case that Thomas teed up — and that the Supreme Court refused to hear on Monday — came in the form of an appeal by Kim Davis, the former Kentucky county court clerk who served six days in jail after denying marriage licenses to gay couples in 2015 based on her religious beliefs. Following her release from jail, a couple who claimed Davis discriminated against them sued her, and a jury ordered her to pay more than $300,000.
Davis, who is represented by lawyers affiliated with Liberty Counsel, a group dedicated to “advancing religious freedom, the sanctity of human life, and the family through strategic litigation,” grounded her appeal in the claims of religious liberty under the First Amendment — claims that have often carried the day with the current court.
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Her case mounted a full-scale assault on Obergefell — and unabashedly channeled the views Thomas has repeatedly expressed. Obergefell, she argued in her petition, was based on a “legal fiction.” Her descriptions of the decision’s alleged damage were unequivocal: “egregiously wrong,” “deeply damaging,” “far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” Obergefell set out “on a collision course with the Constitution from the day it was decided” and did great damage to the moral fabric of the nation.
“Davis,” the petition continued, “may have been one of the first victims of th[e] Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.”
Many forget that Davis has tried this before. In 2020, she petitioned the court to reconsider the case. Over the strenuous objection of Thomas and Justice Samuel Alito, she was denied.
Her return to the court five years later with the same request is a reminder of how litigation campaigns work. Their leaders know that Rome wasn‘t built in a day — and that learning from defeats can prepare the way for victory.
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The post SCOTUS won’t revisit marriage equality. But the fight isn’t over appeared first on Salon.com.
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