The broad consensus among legal experts is that Obergefell v. Hodges, the case that legalized same-sex marriage nationally, probably will survive a new case seeking to blow it up — but that the right-wing justices could make a move to weaken LGBTQ rights, experts told Salon's Marina Villaneuve.
Kim Davis, the Rowan County, Kentucky clerk who became a household name a decade ago by refusing to certify same-sex marriages in defiance of federal courts, is still refusing to pay hundreds of thousands in damages she owes to people whose rights she denied — and her lawyers are now appealing that judgment, trying to get the Supreme Court to hear an argument to reverse Obergefell and citing that the same court found the abortion rights guaranteed in Roe v. Wade were not “deeply rooted in the nation’s history and tradition.”
“Nothing is safe from the attack of the conservative majority on this court,” said Mary Ann Case of the University of Chicago Law School professor. “They can cut precedents down at will. And that means it's hard to know what the law is and will be.”
GWU Professor Emeritus Ira Lupu said that the case is largely a cynical move to get donations for the coffers of Liberty Council, the group bankrolling Davis.
“They make money by fighting for people like Kim Davis, and the case gets a whole lot more attention when they say that – not just that she shouldn't have to pay damages or attorney fees.”
But he warned if the court did move to reverse Obergefell, "that would be a volcano you'd be setting off," potentially blowing up things as far-reaching as banks that issued mortgages in the name of those couples.
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One person who had a lot to say on the matter was the namesake plaintiff of the original case, Jim Obergefell, who sued in part because without marriage rights, he might not have even been able to say goodbye to his partner, John Arthur, when he was fighting for his life in a Catholic hospital. Obergefell couldn't be listed as a surviving spouse on Arthur's death certificate, and Obergefell couldn't be buried in Arthur's family plot.
“The pushback against that, the fight to undermine our right to marry the person we love, it started immediately. And this is just a continuation of that, and now it is being supported and directed by Supreme Court justices,” Obergefell told Salon.
The justices, he said, “clearly don't care about precedent, and ... not based on truly the law, but based on their personal attitudes, beliefs and prejudices, they will overturn laws. They will overturn previous decisions. And every right we enjoy in this country is at risk.”
