March For Marriage, June 2014. Photo by Elvert Barnes.
If you are worried about the prospects for same-sex marriage in the United States after President Trump nominates a successor to Supreme Court Justice Anthony Kennedy, I can offer you a choice: You can relax, or you can find something else to worry about.
Same-sex marriage is here to stay. Period. Full stop. End of story.
There is no chance that in our lifetimes the Supreme Court will overrule Obergefell v. Hodges, notwithstanding that the decision came only three years ago and only on a 5-4 vote. In that ruling, the court declared that state bans on same-sex marriages violated the Constitution’s 14th Amendment.
There is still room for disagreement about related issues, such as when a vendor can lawfully refuse to provide goods or services for such a wedding. Marriage has both a civil and a religious component, and First Amendment protections for religious freedom create some uncertainty about the boundaries of the constitutionally protected rights of both sides. Trump’s nominee may very well have an impact on how such disputes will be decided.
There are also ongoing controversies about other LGBTQ issues, such as the reach of nondiscrimination laws (or state laws banning local nondiscrimination ordinances) and access to public restrooms according to gender identity. These issues matter to a considerable number of people, and the future outcomes are still in doubt and likely to be affected by the high court. My guess is that unisex facilities will become common, if not mandatory, before too many more years pass. Skeptics are going to have to adjust, and we men may no longer enjoy our privileged rapid access to the facilities at concerts and sporting events. Equality comes with a price, I suppose.
But these issues are relatively small compared to the enormous legal and social significance of marriage itself. It has been less than 15 years since the first legally recognized same-sex marriages were performed in this country, in Massachusetts. It took barely a decade before marriage equality spread from that single state to 36, which is where things stood before Obergefell extended legal recognition to same-sex marriage nationwide.
The Gallup organization recently reported that two-thirds of American adults, including an overwhelming majority of Democrats and just under half of Republicans, now support same-sex marriage. A year earlier, Gallup reported that more than 1 million Americans were married to someone of the same sex, just two years after Obergefell.
Chief Justice John Roberts, in his dissent in South Dakota v. Wayfair, noted the importance of stare decisis – the doctrine that precedent on which large numbers of people rely for important matters should not be overruled absent a compelling judicial reason. Hardly anything could be more worthy of such deference and legal respect than the most intimate personal relationship of more than 1 million citizens. Also, from a practical perspective, the alternative to universal legal recognition of same-sex relationships is chaos.
This is not to say that certain organized religions and people of faith won’t continue to object to same-sex marriage, or to define marriage for religious purposes as solely between a man and a woman. Their objections will be noted, but will carry no more weight than beliefs about sex outside marriage, or eating pork, or worshipping on the Sabbath. Some will honor these views in the observance, others in the breach. That is what religious freedom is all about.
Yet we will continue to hear many ruminations, after Trump announces his choice and whomever that might be, that Obergefell is in danger. Other than from the most naive and ill-informed sources, this agitation is mostly designed to serve other purposes. One is to mobilize opposition to the nominee for other, unrelated reasons. A second is to ignite the political left’s base (if there is any remaining part of it that is not already ablaze) ahead of the November election. And the third – never underestimate this – is to raise money. Inciting panic in politics is always about money to a large degree.
So mobilize against Trump’s nominee if you will. Donate to your favorite advocacy group. March for LGBTQ rights that you feel the need to further show support. Just don’t lose sleep over the future of same-sex marriage. It is here, and it is not going to go away.