You’ve seen the headlines. On CNN, the headline states that “Justices Thomas and Alito lash out at the decision that cleared way for same-sex marriage.” On NPR, it says that “Justices Thomas, Alito Blast Supreme Court Decision On Same-Sex Marriage Rights.” And on Fox News, it reads, “Justices Thomas, Alito slam Obergefell same-sex marriage decision as Supreme Court denies Kim Davis case.” Do same-sex couples and advocates for marriage equality in North Carolina really have something to worry about? The answer might be yes.
Although NC has recognized same-sex marriages since 2014, marriage equality remains an issue in courts and legislatures across the country.
North Carolina has generally recognized same-sex marriage since 2014. In April 2014, an NC federal court issued an opinion holding that the denial of marriage rights to same-sex couples in North Carolina was unconstitutional. As same-sex couples know, however, that decision didn’t mark the end of the fight for marriage equality.
Since then, the NC House of Representatives has introduced House Bill 780, called the “Uphold Historical Marriage Act.” Under that 2017 bill, marriage can only be between a man and a woman. Although the bill has yet to pass the NC Senate, that’s somewhat unsurprising in light of the United States Supreme Court’s 2015 Obergefell v. Hodges decision.
In Obergefell v. Hodges, the Supreme Court ruled that same-sex marriage was constitutionally guaranteed under the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause. Since then, states across the country have generally recognized same-sex marriages (although several states still haven’t repealed existing laws that ban same-sex marriage).
With the recent passing of Justice Ruth Bader Ginsburg, however, many high-profile legal issues are up in the air. Whether it’s the future of Roe v. Wade, the fate of the Affordable Care Act or even the results of the 2020 election, Americans’ eyes are watching the Supreme Court now more than ever. Which brings us to marriage equality….
Another issue that SCOTUS might impact is same-sex marriage, which two justices took aim at earlier this week.
Earlier this week, SCOTUS declined to substantively consider a lawsuit filed by Kim Davis, the former county clerk from Kentucky that gained media attention after refusing to issue marriage licenses to same-sex couples. SCOTUS’s decision not to consider the case is unremarkable. The Court does the same thing in thousands of cases every year.
It made headlines this time, however, because two conservative justices, Justice Clarence Thomas and Justice Samuel Alito, wrote separately and put the Obergefell v. Hodges in their crosshairs.
Justice Thomas, writing on their behalf, described the Obergefell v. Hodges decision as creating constitutional rights that don’t actually exist. Despite acknowledging that the majority of justices in that case recognized “that those with sincerely held religious objections to same-sex marriage are often ‘decent and honorable,’” Justice Thomas wrote that the other justices really believed religious individuals “espoused a bigoted worldview.”
Justice Thomas asserted that Obergefell v. Hodges treated religious individuals as having “a bigoted worldview.”
According to Justice Thomas, Ms. Davis, who was voluntarily employed as a county clerk but refused to do part of that job (issuing marriage licenses to same-sex couples) based on her religion, was “one of the first victims of [the Supreme Court’s] cavalier treatment of religion….” According to him, Obergefell v. Hodges forced Ms. Davis to choose “between her religious beliefs and her job.”
As a result, Justice Thomas wrote, everyone “with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws.”
So, Justice Thomas concluded, the Obergefell v. Hodges left SCOTUS with a problem that it needed to fix. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” he wrote. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”
The future of marriage equality remains unclear, as Justice Thomas’s “until then” warning has same-sex couples and their allies concerned.
Justice Thomas’s “until then” warning has same-sex couples and their loved ones wondering what could be next. While neither Justice Thomas nor Justice Alito offer any specific clarity in that regard, the possibilities seem clear enough: If SCOTUS overturns Obergefell v. Hodges, marriage equality might become a thing of the past in states with Republican-leaning legislatures.
In North Carolina, this chance could possibly happen. If SCOTUS overturns Obergefell v. Hodges, the NC General Assembly could move forward with the 2017 “Uphold Historical Marriage Act.” If that bill were to pass the Senate and avoid a governor’s veto, NC law would only recognize marriages between a man and a woman.
Gov. Cooper’s veto is one of the only hurdles the General Assembly would face with the “Uphold Historical Marriage Act.”
Because Gov. Roy Cooper has expressed support for marriage equality in the past, his veto likely serves as a road block for this possibility moving forward. But Cooper currently faces a challenge by Lieutenant Governor Dan Forest. And, at a minimum, Forest’s election would make the fate of marriage quality even less certain.
It is unlikely, however, that, even if SCOTUS were to overturn Obergefell v. Hodges, that such a decision would impact same-sex couples who are already married. It’s certainly possible that certain special-interest groups or even the General Assembly could try to retroactively undo currently legal marriages. (And, as we’ve reported before, the General Assembly isn’t afraid to try to retroactively rewrite laws.)
However, courts are generally reluctant to enforce retroactive legislation. In fact, in terms of criminal law, there are constitutional provisions that specifically prohibit them from doing so. Those same protections likely wouldn’t apply to marriages. But it’s hard to imagine a state government trying to “un-marry” couples whose marriage was legal at the time.
The national SCOTUS dialogue focuses on abortion and healthcare, but, after Justice Thomas’s recent comments, it seems that the dialogue should include marriage equality, too.
Ultimately, there are various reasons why so many folks are passionate about the outcome of the current SCOTUS vacancy. The outcome could impact your access to healthcare and the restrictions on abortions. Much of the national commentary focuses on those two eye-catching issues. But those are just two of many issues that were on the ballot in 2016 and are again in 2020. And, as Justice Thomas made clear, marriage equality is certainly one of those issues.