Trump Of Doom: Obergefell v Hodges

By Ken Burnside

I’m not gay; these aren’t my civil rights being dangled over a woodchipper.

I am, however, a student of history.  Let me lay out the horror show for you.

The One Justice Scenario

Donald Trump is President.  Donald Trump will, barring a bout of strangeness in the Senate that is unprecedented in the history of this country, get to appoint Antonin Scalia’s replacement to the Supreme Court.


Assume, for the sake of argument, that Trump presents Ted Cruz as an anti-gay Strict Constructionist jurist to the Senate on January 21st.  Assume, for the sake of argument, that the 48 members of the Democratic Caucus are so gleeful at getting the man out of the Senate that they roll over, play dead, and lick the hands of the Republican majority and confirm him on January 24th.

Assume, for our worst possible case scenario, that some heretofore invisible case attempting to overturn gay marriage is wending its way through the court system, and gets selected by the Supreme Court as one of their Spring cases.

Let’s assume Justice Cruz votes identically to Scalia.

Scalia voted against Obergefell.  A Justice Cruz gives us the same 5-4 court that ruled that the 14th Amendment covers same sex marriages. When in doubt, the way to bet on overturning a prior Supreme Court ruling is in favor of “make the fewest ripples.”

One appointment alone won’t overturn the Supreme Court’s ruling.

The Overturn Scenario

So, let’s assume that Ginsburg dies.  Let’s assume there’s a Mike Pence vetted replacement ready to sit in the court.  We’ll assume, once again, that the Democratic caucus in the Senate is complicit in putting an anti-gay whack-a-doodle on the Supreme Court, and doesn’t use a decade’s worth of hard lessons on obstructionism against this.

It’s unlikely, but…play along here.  I’m writing horror. Some suspension of disbelief is necessary.

Now it’s a 5-4 court with Wild Card Kennedy as part of the liberal minority. We’ll assume Obergefell gets overturned before Ginsburg’s casket makes it to the Capital for a state viewing.

What happens then?  Is it concentration camp time for gays and lesbians?

No.  Gay Marriage has passed by court decree in the state courts, or by legislation in 36 states.  It was due to be made legal by the end of the year in three more in 2015.

All existing marriages are still valid.  Gay couples may have to travel to a different state to get an officiant and a legal marriage.  All existing marriages (and new marriages) have to be recognized in states that don’t issue them; the precedent for this is based off of the intersection of Jewish law and state law.  New York is the most heavily Jewish state in the country.  Jewish law permits first cousins to marry; New York State does not.

When a first cousin marriage was in the offing, the family would take the train to Providence, Rhode Island, get married there (where first cousin marriage *is* legal) and come back to New York. This has been litigated from every angle, and it’s held up.  There are decades of case law at work here.

The Supreme Court lacks the power to annul existing marriages.  The problem with gay marriage rights right now is divorce with child custody.  Judges in family court have tremendous leeway when they can justify it on the basis of “welfare of the child.”

Would a two-Justice swap and an overturn of Obergefell be a setback?  Yes.  To roughly 2013, not 1933.

Is it a permanent setback?  No.  Just like the political pendulum turned against liberalism after eight years of the Obama Administration, it’s going to swing back in time.

What To Do If You’re Gay…

If you’re planning on getting married, or getting legally hitched, and are in a place where gay marriage was formerly illegal, get the planning going now. Consider getting your marriage license distinct from your wedding planning, and get it taken care of.

Consider moving to one of the 36+ states that have enabling legislation on the books, making it explicitly legal. Moving sucks, sometimes it’s the best option.

While I do not think anyone should be forced into the closet, that is a deeply personal decision. I will applaud your bravery if you’re out, and I won’t fault you for choosing to be quiet about your sexuality.

If you’re married, have kids, and are stuck in a hostile state, consider bolstering your parental rights with a co-parent adoption.

If you’re worried about Religious Exemption Rules allowing discrimination against you and your partner, contact the ACLU, and GLAAD. Contact Lambda Legal.  Look into Black and Pink and  The Mazzoni Center.  These are all groups who can help you if you’re being discriminated against, and they’re not going away just because Donald Trump is President.