Is marriage equality in danger in a Trump presidency?
Donald Trump has, among other policy proposals of varying specificity, threatened to “overturn” Obergefell v. Hodges, so The Good Americans Everywhere are protected from The Gays and Their Pernicious Agenda. Can he really pull it off?
Theoretically, yes. In simplest form, all that is required to undo a Supreme Court decision is another Supreme Court decision. Obergefell was decided by a 5-4 split, with Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan (hereinafter: The Good Guys, guys being used in an entirely gender-neutral way) joining the majority, and Justices Roberts, Scalia, Thomas, and Alito (hereinafter: The Bad Guys) dissenting.
When Trump began making promises, there were no vacancies on the Court, but, of course, Scalia has since passed away, meaning that a newly elected president will have a non-theoretical vacancy to fill (see also: Garland, justice-in-waiting). Trump has said in so many words that he will specifically seek justices not only willing, but dedicated to reversing the decision, and there is no doubt that opposition to marriage equality is at a fever pitch among those whose very way of life is under attack. Assuming he does so, that leaves the balance at 5-4, with no net change.
This is not the only opportunity that
a theoretical President-elect Trump is likely to have, even in a four-year term, as the court is, as a group, aging. Ginsburg and Kennedy are both in their eighties, and Breyer will be 78 by the time that a new president is inaugurated. For those keeping score, the three oldest justices are also Good Guys, and any the loss of any one of them during a Bad-Guy administration could tip the balance. In a GOP-controlled, Bad-Guy Senate, it is highly likely that a Trump appointee would face little to no majority opposition. Once the Court is favorably stacked, the legislative Bad Guys can pass hostile legislation, a Defense of Marriage Act 2.0, as it were, with relative ease, and the inevitable challenge can and will eventually work its way back to the Supreme Court, aided and abetted by judicial Bad Guys amenable to selecting the case for review.
The Supreme Court is the ultimate arbiter of what is constitutional, so, of course, the other option is to amend the Constitution. This is far less likely, requiring a two-thirds vote in both houses of Congress, and ratification by three-fourths of state legislatures. This method is mentioned here only in the interest of full disclosure.
Even in an orange-tinged Trump
fantasy world, though, federal judges, Good Guys and Bad, are constrained by judicial standards of behavior, the most relevant of which in this context are the concepts of res judicata, or, in layman’s terms, “Been there, done that,” and stare decisis, or “Let it be.” Once a matter has been before the Supreme Court and a decision issued, great deference is accorded to that decision, and tampering with the outcome is among the vilest of judicial faux pas. This is not to say that a justice who sees the world through carrot-colored glasses would necessarily show appropriate respect to a standing decision, but the precedent is there, and it is strong.
Justices also, perhaps shockingly to some, can and do consider the real-world ramifications of their actions, which would, in this case, potentially invalidate thousands of marriages and create a foxtrot that even Len Goodman cannot parse. The marriage just disappears like cash at the Trump Foundation, leaving behind two or more now-unrelated people who have no way to navigate their lives, having based at least some part of their joint existence on a reality that is no more. There is literally no precedent for creating that sort of chaos. No justice wants that on his or her resume, leave aside conscience.
Finally, and to this observer, most importantly, the United States of America does not tend to grant rights and then call take backsies. To coin a phrase, our moral arc may be long (insufferably, ridiculously so in more than one case), but once it bends toward justice, it stays bent, no matter how hard certain factions try to straighten out the curve. Significantly, though, the death rattle of the prejudice du jour is never without consequence.
Obergefell isn’t the whole battle by any stretch of the imagination. Even assuming
a theoretical President Trump is thwarted in his grand plans to walk back marriage equality, he can be expected to inflict serious damage nonetheless. The evidence of the effect of the blinkered plum’s candidacy is already readily apparent in the newly emboldened “non-PC” crowd, and there is no reason to expect anything other than jubilant, rampant hatred should their standard-bearer be ratified by election to the highest office in the land, where, presumably, he shall grab any and every bit of genitalia that his tiny tangerine ticker desires while protecting our women and children from restroom assault by Others. Beyond the hearts and minds, though, are the potentially life-altering effects of a Trump Court, even one restrained by judicial ethics. No matter who wins Even though Trump has won the White House, one can expect that “religious liberty” laws will continue to proliferate like rabbits on Viagra, and there is no doubt that these will in some form reach the high court. Other backlash litigation, including North Carolina’s HB2, is even now winding its way through judicial challenge, and again, in one form or another is likely to require Supreme Court intervention. A fairly sickening amount of hostile litigation related to adoption, familial rights, gender identity and other questions of fundamental rights for all minority groups at some point also must be addressed because apparently these issues need to be litigated. Remember those three aging Good Guys? May the Maker of All Things (or any deity or fate you prefer) grant them health and long life, just in case. In November Come January
In practical terms,
a theoretical President-elect Trump may not be able to take your marriage, but that won’t stop him trying, and he can definitely take something else you’d like to keep. Mind you, he only gets the chance if so granted by the American voting populous come November 8.
Edited on Nov. 9 by Equally Wed after Trump won the presidency.
Original photo: Donald J. Trump’s Facebook account