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CNN
2 days ago
- Politics
- CNN
How the Supreme Court could wind up scrapping high-profile precedents in coming months
The Supreme Court's landmark opinion on same-sex marriage isn't the only high-profile precedent the justices will have an opportunity to tinker with – or entirely scrap – when the court reconvenes this fall. From a 1935 opinion that has complicated President Donald Trump's effort to consolidate power to a 2000 decision that deals with prayer at high school football games, the court will soon juggle a series of appeals seeking to overturn prior decisions that critics say are 'outdated,' 'poorly reasoned' or 'egregiously wrong.' While many of those decisions are not as prominent as the court's 2015 ruling in Obergefell v. Hodges that gave same-sex couples access to marriage nationwide, some may be more likely to find a receptive audience. Generally, both conservative and liberal justices are reticent to engage in do-overs because it undermines stability in the law. And independent data suggests the high court under Chief Justice John Roberts has been less willing to upend past rulings on average than earlier courts. But the Supreme Court's 6-3 conservative majority hasn't shied from overturning precedent in recent years – notably on abortion but also affirmative action and government regulations. The court's approval in polling has never fully recovered from its 2022 decision to overturn Roe v. Wade, which established the constitutional right to abortion. Here are some past rulings the court could reconsider in the coming months. Even before Trump was reelected, the Supreme Court's conservatives had put a target on a Roosevelt-era precedent that protects the leaders of independent agencies from being fired by the president for political reasons. The first few months of Trump's second term have only expedited its demise. The 1935 decision, Humphrey's Executor v. US, stands for the idea that Congress may shield the heads of independent federal agencies, like the National Labor Relations Board or the Consumer Product Safety Commission, from being fired by the president without cause. But in recent years, the court has embraced the view that Congress overstepped its authority with those for-cause requirements on the executive branch. Court watchers largely agree 'that Humphrey's Executor is next on the Supreme Court's chopping block, meaning the next case they are slated to reverse,' said Victoria Nourse, a professor at Georgetown University Law Center who worked in the Biden administration. In a series of recent emergency orders, the court has allowed Trump – ever eager to remove dissenting voices from power – to fire leaders of independent agencies who were appointed by former President Joe Biden. The court's liberal wing has complained that, following those decisions, the Humphrey's decision is already effectively dead. 'For 90 years, Humphrey's Executor v. United States has stood as a precedent of this court,' Justice Elena Kagan wrote last month. 'Our emergency docket, while fit for some things, should not be used to overrule or revise existing law.' Through the end of the Supreme Court term that ended in June, the Roberts court overruled precedent an average of 1.5 times each term, according to Lee Epstein, a law professor at Washington University in St. Louis who oversees the Supreme Court Database. That compares with 2.9 times on average prior to Roberts, dating to 1953. An important outstanding question is which case challenging Humphrey's will make it to the Supreme Court – and when. The high court has already agreed to hear an appeal – possibly this year – that could overturn a 2001 precedent limiting how much political parties can spend in coordination with federal candidates. Democrats warn the appeal, if successful, could 'blow open the cap on the amount of money that donors can funnel to candidates.' In a lawsuit initially filed by then-Senate candidate JD Vance and other Republicans, the challengers describe the 2001 decision upholding the caps – FEC v. Colorado Republican Federal Campaign Committee – as an 'aberration' that was 'plainly wrong the day it was decided.' If a majority of the court thinks the precedent controls the case, they wrote in their appeal, 'it should overrule that outdated decision.' Republicans say the caps are hopelessly inconsistent with the Supreme Court's modern campaign finance doctrine and that they have 'harmed our political system by leading donors to send their funds elsewhere,' such as super PACs, which can raise unlimited funds but do not coordinate with candidates. In recent years, the Supreme Court has tended to shoot down campaign finance rules as violating the First Amendment. A recent Supreme Court appeal from Kim Davis, a former county clerk from Kentucky who refused to issue marriage licenses to same-sex couples, has raised concerns from some about the court overturning its decade-old Obergefell decision. Davis is appealing a $100,000 jury verdict – plus $260,000 for attorneys' fees – awarded over her move to defy the Supreme Court's decision and decline to issue the licenses. Davis has framed her appeal in religious terms, a strategy that often wins on the conservative court. She described Obergefell as a 'mistake' that 'must be corrected.' 'If ever there was a case of exceptional importance, the first individual in the Republic's history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it,' Davis told the justices in her appeal. Even if there are five justices willing to overturn the decision – and there are plenty of signs there are not – many court watchers believe Davis' appeal is unlikely to be the vehicle for that review. Ilya Somin, a law professor at George Mason University, wrote recently that there are 'multiple flaws' with Davis' case. People in the private sector – say, a wedding cake baker or a website developer – likely have a First Amendment right to exercise their objections to same-sex marriage. But, Somin wrote, public employees are a very different matter. 'They are not exercising their own rights,' he wrote, 'but the powers of the state.' Days after returning to the bench in October to begin a new term, the Supreme Court will hear arguments in one of the most significant appeals on its docket. The case centers on Louisiana's fraught congressional districts map and whether the state violated the 14th Amendment when it drew a second majority-Black district. If the court sides with a group of self-described 'non-Black voters,' it could gut a key provision of the Voting Rights Act. Three years ago, a federal court ruled that Louisiana likely violated the Voting Rights Act by drawing only one majority Black district out of six. When state lawmakers tried to fix that problem by drawing a second majority-minority district, a group of White voters sued. Another court then ruled that the new district was drawn based predominantly on race and thus violated the Constitution. The court heard oral arguments in the case in March. But rather than issuing a decision, it then took the unusual step in June of holding the case for more arguments. Earlier this month, the court ordered more briefing on the question of whether the creation of a majority-minority district to remedy a possible Voting Rights Act violation is constitutional. The case has nationwide implications; if the court rules that lawmakers can't fix violations of the Voting Rights Act by drawing new majority-minority districts, it could make it virtually impossible to enforce the landmark 1965 law when it comes to redistricting. That outcome could effectively overturn a line of Supreme Court precedents dating to its 1986 decision in Thornburg v. Gingles, in which the court ruled that North Carolina had violated the Voting Rights Act by diluting the power of Black voters. Just two years ago, the court ordered officials in Alabama to redraw the state's congressional map, upholding a lower court decision that found the state had violated the statute. 'Some opponents of the Voting Rights Act may urge the court to go further and overturn long-standing precedents, but there's absolutely no reason to go there,' said Michael Li, an expert on redistricting and voting rights and a senior counsel in the Brennan Center's Democracy Program. The case will not affect the battle raging over redistricting and the effort by Texas Republicans to redraw congressional boundaries to benefit their party. That's because the Supreme Court ruled in a landmark 2019 decision that federal courts cannot review partisan gerrymanders. What's at stake in the Louisiana case, instead, is how far lawmakers may go in considering race when they redraw congressional and state legislative boundaries every decade. Air Force Staff Sgt. Cameron Beck was killed in 2021 on Whiteman Air Force Base in Missouri when a civilian employee driving a government-issued van turned in front of his motorcycle. When his wife tried to sue the federal government for damages, she was blocked by a 1950 Supreme Court decision that severely limits damages litigation from service members and their families. The pending appeal from Beck's family, which the court will review behind closed doors next month, will give the justices another opportunity to reconsider that widely criticized precedent. The so-called Feres Doctrine generally prohibits service members from suing the government for injuries that arose 'incident to service.' The idea is that members of the military can't sue the government for injuries that occur during wartime or training. But critics say the upshot is that service members have been barred from filing routine tort claims – including for traffic accidents involving government vehicles – that anyone else could file. 'This court should overrule Feres,' Justice Clarence Thomas, a stalwart conservative, wrote earlier this year in a similar case the court declined to hear. 'It has been almost universally condemned by judges and scholars.' Thomas is correct that criticism of the opinion has bridged ideologies. The Constitutional Accountability Center, a liberal group, authored a brief in the Beck case arguing that the 'sweeping bar to recovery for servicemembers' adopted by the Feres decision 'is at odds' with what Congress intended. But the federal government, regardless of which party controls the White House, has long rejected those arguments. The Justice Department urged the Supreme Court to reject Beck's case, noting that Feres has 'been the law for more than 70 years, and has been repeatedly reaffirmed by this court.' Prominent religious groups are taking aim at a 25-year-old Supreme Court precedent that barred prayer from being broadcast over the public address system before varsity football games at a Texas high school. In that 6-3 decision, the court ruled that a policy permitting the student-led prayer violated the Establishment Clause, a part of the First Amendment that blocks the government from establishing a state religion. But the court's makeup and views on religion have shifted substantially since then, with a series of significant rulings that thinned the wall that once separated church from state. When the justices meet in late September to decide whether to grant new appeals, they will weigh a request to overturn that earlier decision, Santa Fe Independent School District v. Doe. The new case involves a Christian school in Florida that was forbidden by the state athletic association from broadcasting the prayer ahead of a championship game with another religious school. The Supreme Court should overrule Santa Fe 'as out of step with its more recent government-speech precedent,' the school's attorneys told the high court in its appeal. 'Santa Fe,' they said, 'was dubious from the outset.' It is an argument that may find purchase with the court's conservatives, who have increasingly framed state policies that exclude religious actors as discriminatory. In 2022, the high court reinstated a football coach, Joseph Kennedy, who lost his job at a public high school after praying at the 50-yard line after games. Those prayers, conservative Justice Neil Gorsuch wrote for the court at the time, amounted to 'a brief, quiet, personal religious observance.' Kennedy submitted a brief in the new case urging the Supreme Court to take up the appeal – and to now let pregame prayers reverberate through the stadium. The school, Kennedy's lawyers wrote, 'has a longstanding tradition of, and deeply held belief in, opening games with a prayer over the stadium loudspeaker.'
CNN
2 days ago
- Politics
- CNN
How the Supreme Court could wind up scrapping high-profile precedents in coming months
The Supreme Court's landmark opinion on same-sex marriage isn't the only high-profile precedent the justices will have an opportunity to tinker with – or entirely scrap – when the court reconvenes this fall. From a 1935 opinion that has complicated President Donald Trump's effort to consolidate power to a 2000 decision that deals with prayer at high school football games, the court will soon juggle a series of appeals seeking to overturn prior decisions that critics say are 'outdated,' 'poorly reasoned' or 'egregiously wrong.' While many of those decisions are not as prominent as the court's 2015 ruling in Obergefell v. Hodges that gave same-sex couples access to marriage nationwide, some may be more likely to find a receptive audience. Generally, both conservative and liberal justices are reticent to engage in do-overs because it undermines stability in the law. And independent data suggests the high court under Chief Justice John Roberts has been less willing to upend past rulings on average than earlier courts. But the Supreme Court's 6-3 conservative majority hasn't shied from overturning precedent in recent years – notably on abortion but also affirmative action and government regulations. The court's approval in polling has never fully recovered from its 2022 decision to overturn Roe v. Wade, which established the constitutional right to abortion. Here are some past rulings the court could reconsider in the coming months. Even before Trump was reelected, the Supreme Court's conservatives had put a target on a Roosevelt-era precedent that protects the leaders of independent agencies from being fired by the president for political reasons. The first few months of Trump's second term have only expedited its demise. The 1935 decision, Humphrey's Executor v. US, stands for the idea that Congress may shield the heads of independent federal agencies, like the National Labor Relations Board or the Consumer Product Safety Commission, from being fired by the president without cause. But in recent years, the court has embraced the view that Congress overstepped its authority with those for-cause requirements on the executive branch. Court watchers largely agree 'that Humphrey's Executor is next on the Supreme Court's chopping block, meaning the next case they are slated to reverse,' said Victoria Nourse, a professor at Georgetown University Law Center who worked in the Biden administration. In a series of recent emergency orders, the court has allowed Trump – ever eager to remove dissenting voices from power – to fire leaders of independent agencies who were appointed by former President Joe Biden. The court's liberal wing has complained that, following those decisions, the Humphrey's decision is already effectively dead. 'For 90 years, Humphrey's Executor v. United States has stood as a precedent of this court,' Justice Elena Kagan wrote last month. 'Our emergency docket, while fit for some things, should not be used to overrule or revise existing law.' Through the end of the Supreme Court term that ended in June, the Roberts court overruled precedent an average of 1.5 times each term, according to Lee Epstein, a law professor at Washington University in St. Louis who oversees the Supreme Court Database. That compares with 2.9 times on average prior to Roberts, dating to 1953. An important outstanding question is which case challenging Humphrey's will make it to the Supreme Court – and when. The high court has already agreed to hear an appeal – possibly this year – that could overturn a 2001 precedent limiting how much political parties can spend in coordination with federal candidates. Democrats warn the appeal, if successful, could 'blow open the cap on the amount of money that donors can funnel to candidates.' In a lawsuit initially filed by then-Senate candidate JD Vance and other Republicans, the challengers describe the 2001 decision upholding the caps – FEC v. Colorado Republican Federal Campaign Committee – as an 'aberration' that was 'plainly wrong the day it was decided.' If a majority of the court thinks the precedent controls the case, they wrote in their appeal, 'it should overrule that outdated decision.' Republicans say the caps are hopelessly inconsistent with the Supreme Court's modern campaign finance doctrine and that they have 'harmed our political system by leading donors to send their funds elsewhere,' such as super PACs, which can raise unlimited funds but do not coordinate with candidates. In recent years, the Supreme Court has tended to shoot down campaign finance rules as violating the First Amendment. A recent Supreme Court appeal from Kim Davis, a former county clerk from Kentucky who refused to issue marriage licenses to same-sex couples, has raised concerns from some about the court overturning its decade-old Obergefell decision. Davis is appealing a $100,000 jury verdict – plus $260,000 for attorneys' fees – awarded over her move to defy the Supreme Court's decision and decline to issue the licenses. Davis has framed her appeal in religious terms, a strategy that often wins on the conservative court. She described Obergefell as a 'mistake' that 'must be corrected.' 'If ever there was a case of exceptional importance, the first individual in the Republic's history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it,' Davis told the justices in her appeal. Even if there are five justices willing to overturn the decision – and there are plenty of signs there are not – many court watchers believe Davis' appeal is unlikely to be the vehicle for that review. Ilya Somin, a law professor at George Mason University, wrote recently that there are 'multiple flaws' with Davis' case. People in the private sector – say, a wedding cake baker or a website developer – likely have a First Amendment right to exercise their objections to same-sex marriage. But, Somin wrote, public employees are a very different matter. 'They are not exercising their own rights,' he wrote, 'but the powers of the state.' Days after returning to the bench in October to begin a new term, the Supreme Court will hear arguments in one of the most significant appeals on its docket. The case centers on Louisiana's fraught congressional districts map and whether the state violated the 14th Amendment when it drew a second majority-Black district. If the court sides with a group of self-described 'non-Black voters,' it could gut a key provision of the Voting Rights Act. Three years ago, a federal court ruled that Louisiana likely violated the Voting Rights Act by drawing only one majority Black district out of six. When state lawmakers tried to fix that problem by drawing a second majority-minority district, a group of White voters sued. Another court then ruled that the new district was drawn based predominantly on race and thus violated the Constitution. The court heard oral arguments in the case in March. But rather than issuing a decision, it then took the unusual step in June of holding the case for more arguments. Earlier this month, the court ordered more briefing on the question of whether the creation of a majority-minority district to remedy a possible Voting Rights Act violation is constitutional. The case has nationwide implications; if the court rules that lawmakers can't fix violations of the Voting Rights Act by drawing new majority-minority districts, it could make it virtually impossible to enforce the landmark 1965 law when it comes to redistricting. That outcome could effectively overturn a line of Supreme Court precedents dating to its 1986 decision in Thornburg v. Gingles, in which the court ruled that North Carolina had violated the Voting Rights Act by diluting the power of Black voters. Just two years ago, the court ordered officials in Alabama to redraw the state's congressional map, upholding a lower court decision that found the state had violated the statute. 'Some opponents of the Voting Rights Act may urge the court to go further and overturn long-standing precedents, but there's absolutely no reason to go there,' said Michael Li, an expert on redistricting and voting rights and a senior counsel in the Brennan Center's Democracy Program. The case will not affect the battle raging over redistricting and the effort by Texas Republicans to redraw congressional boundaries to benefit their party. That's because the Supreme Court ruled in a landmark 2019 decision that federal courts cannot review partisan gerrymanders. What's at stake in the Louisiana case, instead, is how far lawmakers may go in considering race when they redraw congressional and state legislative boundaries every decade. Air Force Staff Sgt. Cameron Beck was killed in 2021 on Whiteman Air Force Base in Missouri when a civilian employee driving a government-issued van turned in front of his motorcycle. When his wife tried to sue the federal government for damages, she was blocked by a 1950 Supreme Court decision that severely limits damages litigation from service members and their families. The pending appeal from Beck's family, which the court will review behind closed doors next month, will give the justices another opportunity to reconsider that widely criticized precedent. The so-called Feres Doctrine generally prohibits service members from suing the government for injuries that arose 'incident to service.' The idea is that members of the military can't sue the government for injuries that occur during wartime or training. But critics say the upshot is that service members have been barred from filing routine tort claims – including for traffic accidents involving government vehicles – that anyone else could file. 'This court should overrule Feres,' Justice Clarence Thomas, a stalwart conservative, wrote earlier this year in a similar case the court declined to hear. 'It has been almost universally condemned by judges and scholars.' Thomas is correct that criticism of the opinion has bridged ideologies. The Constitutional Accountability Center, a liberal group, authored a brief in the Beck case arguing that the 'sweeping bar to recovery for servicemembers' adopted by the Feres decision 'is at odds' with what Congress intended. But the federal government, regardless of which party controls the White House, has long rejected those arguments. The Justice Department urged the Supreme Court to reject Beck's case, noting that Feres has 'been the law for more than 70 years, and has been repeatedly reaffirmed by this court.' Prominent religious groups are taking aim at a 25-year-old Supreme Court precedent that barred prayer from being broadcast over the public address system before varsity football games at a Texas high school. In that 6-3 decision, the court ruled that a policy permitting the student-led prayer violated the Establishment Clause, a part of the First Amendment that blocks the government from establishing a state religion. But the court's makeup and views on religion have shifted substantially since then, with a series of significant rulings that thinned the wall that once separated church from state. When the justices meet in late September to decide whether to grant new appeals, they will weigh a request to overturn that earlier decision, Santa Fe Independent School District v. Doe. The new case involves a Christian school in Florida that was forbidden by the state athletic association from broadcasting the prayer ahead of a championship game with another religious school. The Supreme Court should overrule Santa Fe 'as out of step with its more recent government-speech precedent,' the school's attorneys told the high court in its appeal. 'Santa Fe,' they said, 'was dubious from the outset.' It is an argument that may find purchase with the court's conservatives, who have increasingly framed state policies that exclude religious actors as discriminatory. In 2022, the high court reinstated a football coach, Joseph Kennedy, who lost his job at a public high school after praying at the 50-yard line after games. Those prayers, conservative Justice Neil Gorsuch wrote for the court at the time, amounted to 'a brief, quiet, personal religious observance.' Kennedy submitted a brief in the new case urging the Supreme Court to take up the appeal – and to now let pregame prayers reverberate through the stadium. The school, Kennedy's lawyers wrote, 'has a longstanding tradition of, and deeply held belief in, opening games with a prayer over the stadium loudspeaker.'
Fox News
5 days ago
- Politics
- Fox News
Kim Davis' lawyer says Supreme Court has 'good chance' of hearing case urging same-sex marriage be overturned
Mat Staver, the attorney for former Kentucky County Clerk Kim Davis, speaks about petition for Supreme Court to overturn Obergefell v. Hodges decision.
Yahoo
6 days ago
- Politics
- Yahoo
10 years after same-sex marriage became legal, could the ruling be at risk? Here's where things stand, in 7 charts.
Same-sex marriage has become more common and more accepted. The Supreme Court is now being asked to overturn the case that legalized it nationwide. The Supreme Court is being asked to reconsider its landmark ruling in Obergefell v. Hodges that legalized same-sex marriage across the country 10 years ago. The challenge comes from Kim Davis, a former county clerk in Kentucky who was jailed for refusing to issue marriage licenses to same-sex couples in 2015. Davis is appealing a verdict that ordered her to pay $360,000 in damages to a couple who sought a license at her office. Lower courts have rejected her appeal, so she is now petitioning the Supreme Court to not only vacate the decision against her, but to vacate Obergefell entirely. The ruling marked an enormous victory for the marriage equality movement, which steadily gained popular support and increased legal recognition in the preceding decades. 'The right to marry is a fundamental right inherent in the liberty of the person … couples of the same sex may not be deprived of that right and that liberty,' Justice Anthony Kennedy wrote in the majority opinion. It's unclear whether the Supreme Court will even choose to consider Davis's case, let alone decide to overturn a major precedent that's barely over a decade old. But her petition marks the first real challenge to the ruling and comes at a time when opposition to same-sex marriage has been slowly gaining steam on the right. Read more: Could the Supreme Court overturn same-sex marriage? This case hopes to roll back the ruling that made it legal. A lot has changed in the ten years since Obergefell was decided. The number of married same-sex couples has nearly doubled, and a strong majority of Americans believe same-sex marriages should be legal. Here's a snapshot of where things stand on same-sex marriage in America as the court considers whether to take up a case that aims to revoke nationwide marriage equality. More marriages, more acceptance From a purely practical sense, the Obergefell decision really only impacted the laws in a dozen states. The remaining 38 states and Washington, D.C., had already legalized same-sex marriage by that point, starting with Massachusetts in 2004. For that reason, the ruling didn't lead to a major spike in the number of same-sex marriages as much as it allowed an already growing trend to continue uninterrupted. As of 2023, the most recent year with available data, there were more than 770,000 married same-sex couples in America, according to the U.S. Census Bureau. While that's more than twice as many as there were in the year before Obergefell, it still represents just over 1% of all married couples in the U.S. Legalization has changed the nature of same-sex partnerships. In 2008, there were three times as many unmarried same-sex households as married ones. When Obergefell was decided in 2015, it was essentially an even split. Today, 60% of same-sex couples who live together are married. A persistent trend over the past 10 years has been women marrying other women at a higher rate than men marrying men. Though the difference isn't huge, it has resulted in 50,000 more lesbian marriages than gay marriages as of 2023. As a group, people in same-sex marriages have some distinct differences from their heterosexual counterparts. They are about five years younger, on average, and earn about $10,000 more per year than opposite-sex couples, in part because they are more likely to both have college degrees and both be working. The biggest divide involves children. Just 17% of same-sex married couples have kids living at home, less than half the rate of opposite-sex couples. Beyond simply making marriage more equal, legalization has had an 'unambiguously positive' impact on same-sex couples, according to a study published last year. That study found access to legal marriage has made same-sex couples healthier, more successful and more accepted by the communities around them — all of which also improves the lives of their children. They also found no evidence of negative impacts on opposite-sex marriages, despite longstanding warnings from opponents that same-sex marriage would somehow 'undermine' traditional partnerships. Changing views There are few issues in American politics that have seen such a dramatic shift in public opinion as same-sex marriage. It wasn't that long ago that the sitting president, George W. Bush, called for a constitutional amendment banning gay marriage to prevent 'weakening the good influence of society.' In the 2000s, voters in dozens of states — including deep blue California and Oregon — approved ballot measures defining marriage as between one man and one woman. According to long-running polls by Gallup, support for same-sex marriage started steadily increasing in the late 1990s and has continued to trend upward ever since. It became the majority opinion for the first time in 2011 and kept ticking upward, to the point where 60% of Americans agreed with the Obergefell decision when it was handed down. That trend has continued over the past decade, though overall support may have peaked in the early 2020s and has even dipped slightly over the past few years. Gallup's polling reveals huge partisan differences in opinions about same-sex marriage. Less than half of Republicans support it today, which marks a substantial drop from just a few years ago, when 55% of GOP voters said they were in favor. Still, the long-term story is that support for same-sex marriage among Republicans has nearly tripled over the past three decades. Those differences in opinion also show up geographically. Same-sex marriage enjoys majority support in 48 states — the only exceptions being Oklahoma and Arkansas, where it's a 50/50 split — but there are massive gaps between the most and least supportive states. How big is the risk to same-sex marriage? Despite the clear legal and cultural progress that has been made on same-sex marriage, there are still concerns that Obergefell may be at risk of being overturned. If that were to happen, the legality of same-sex marriage would go back to being a state issue. In the past few years, four states — California, Hawaii, Colorado and Nevada — have eliminated their dormant bans so that same-sex marriage would still be legal if that were to happen. There's also some uncertainty about how the laws in a handful of states would operate in the absence of nationwide protections, but the overall result of Obergefell's reversal would be same-sex marriage instantly becoming illegal in dozens of states. But how real is the risk that Obergefell might go away? In addition to Davis's challenge, there have recently been some other headline-grabbing calls from conservatives who want that to happen. Republican lawmakers in at least nine states have introduced bills aimed at chipping away at marriage equality, though none of those would have any legal heft as long as Obergefell stands. Despite those state-level moves, opposing same-sex marriage doesn't appear to be a priority for the GOP as a whole. President Trump has given varying answers on the issue over the years, including saying that he's 'fine' with same-sex marriage during his 2016 campaign. In order to overturn Obergefell, the Supreme Court would have to be willing to hear Davis's case. Despite the court's rightward shift in recent years, many legal experts are skeptical that her petition poses a real threat to Obergefell. 'This just isn't the right vehicle for challenging a constitutional right to same-sex marriage,' Paul Collins, a professor of legal studies at the University of Massachusetts Amherst, told Newsweek. Five of the nine justices who ruled in Obergefell are still on the court today. That includes Chief Justice John Roberts, who opposed the majority's decision in the case, writing in his dissent that 'The fundamental right to marry does not include a right to make a State change its definition of marriage.' Two other dissenting justices, Clarence Thomas and Samuel Alito, are also still in their seats. It's unclear how the other three conservatives on the court would rule if a challenge to Obergefell came before them. It's also not guaranteed that Roberts or Alito would land in the same place they did 10 years ago, especially given the implications of reversing a decision that has been the law of the land for a decade. Thomas is the only conservative justice who has explicitly called for reconsidering same-sex marriage, which was one of several rights that were established in cases decided under the same legal reasoning as the now-defunct abortion protection in Roe v. Wade. So far, none of those other precedents — which include the right to privacy, the right to access contraception and the right to interracial marriage — have faced a serious challenge before the court. Solve the daily Crossword
Forbes
7 days ago
- Politics
- Forbes
Will Supreme Court Overturn Same-Sex Marriage? Here's What To Know As SCOTUS Hasn't Acted Yet
The Supreme Court could consider whether to overturn its landmark ruling legalizing same-sex marriage this term after the court was asked to hear a case on the issue—but the court hasn't yet taken any action on the case, and it remains to be seen whether they'll take it up, which they're not required to do. Joseph Fons holds a LGBTQ Pride Flag in front of the U.S. Supreme Court building in Washington, DC, June 15, 2020. Getty Images A case was filed at the Supreme Court in July that expressly asks the court to overturn its precedent in Obergefell v. Hodges, a 2015 ruling that legalized same-sex marriage nationwide. The case was brought by Kim Davis, a Christian former clerk who gained notoriety and briefly landed in jail in 2015 for refusing to issue marriage certificates to same-sex couples following the Obergefell ruling. Davis has asked the court to determine whether Obergefell should be overturned, as part of a lawsuit that protests the alleged discrimination against her for refusing to issue same-sex marriage certificates. The case has been filed at the Supreme Court, but that is not an indication that the case will actually be decided by the justices, as the court only takes up a small fraction of the total cases it's asked to hear. The court has scheduled the case to be considered at the justices' conference on September 29, meaning a decision on whether or not the court will hear the case won't come until October at the earliest. It's unclear. After ABC News reported Monday on Davis' petition, numerous posts online claimed the Supreme Court was set to decide the issue, including by prediction market Polymarket. But that's not accurate, as justices have so far given no indication either way on whether or not they'll hear the case. The court previously rejected Davis' last petition to the Supreme Court in 2020, which challenged her punishment for refusing to perform same-sex marriages. When Could The Supreme Court Decide The Same-Sex Marriage Case? Though Davis' case is set to be discussed at the court's conference in late September, it's unclear when a decision could come out about whether justices will hear the case. The court will often re-list particularly controversial cases so they're considered at multiple conferences, meaning the court could spend weeks to months deciding whether the case should be heard. If justices do decide to take up the case, oral arguments would take place likely at the end of 2025 or in early 2026, with a decision coming out before the court's term ends in late June or early July 2026. Some of the court's most conservative justices have suggested they're eager to review the court's precedent on same-sex marriage, but there's so far no clear indication that a majority of justices on the 6-3 conservative court would vote to overturn the landmark case. In a concurring opinion when the Supreme Court overturned Roe v. Wade and its protections on abortion in 2022, Justice Clarence Thomas suggested Obergefell and other landmark cases could be overturned next, noting the same-sex marriage case was based on the same legal theory as Roe. Though Justice Samuel Alito's opinion overturning made clear the court's ruling only applied to abortion and not to other cases, Thomas said the same-sex marriage case and others relying on the same legal arguments are 'erroneous' and the court has 'a duty to 'correct the error' established in those precedents.' When the Supreme Court rejected a previous petition Davis submitted to the court in 2020, Thomas and Alito also filed an opinion decrying the Obergefell ruling, saying it 'threaten[s] religious liberty.' Because of the decision, 'those 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,' Alito and Thomas wrote. What Happens If Same-Sex Marriage Is Overturned? If Obergefell v. Hodges is overturned, same-sex marriages will still have some federal protections. Congress passed the Respect for Marriage Act in 2022, which requires all states to recognize same-sex marriages, as long as they were performed legally in a state where same-sex marriage was allowed. It also requires states to recognize marriages despite race or ethnicity, and repealed a previous law that denied federal spousal benefits to same-sex couples. Obergefell getting repealed would mean states would no longer be required to allow same-sex marriages to take place in the state, however, meaning same-sex couples may only be able to get married in certain states, even if their marriage could be legally recognized across the country. Key Background Democrats and LGBTQ advocates have been fearful of what will happen to protections for same-sex marriage since the Supreme Court overturned Roe v. Wade in 2022 and allowed states to outlaw abortion. Public trust in the Supreme Court has plummeted as the conservative-leaning court has issued a number of decisions in recent years that align with right-wing priorities, including giving more legal cover to President Donald Trump, loosening gun restrictions and letting business owners deny services to LGBTQ customers. Davis' petition to the Supreme Court comes as the Trump administration has broadly taken aim at LGBTQ rights in recent months, including by passing orders that restrict transgender rights—including reinstating the transgender military ban—attacking diversity, equity and inclusion efforts and taking steps like ending support for LGBTQ callers to the national suicide prevention hotline. Further Reading Forbes Clarence Thomas: Court Should Reconsider Gay Marriage, Birth Control Decisions Next After Overturning Roe By Alison Durkee Forbes Thomas, Alito Urge Supreme Court To 'Fix' Decision Legalizing Marriage Equality By Alison Durkee Forbes Biden Signs Same-Sex Marriage Protections Into Law By Sara Dorn
