"I'm going to see what I can do about that."

November 9, 2016 5:25 AM

So, what would have to happen to undo same-sex marriage? How bad is this?

What it says on the tin. I'm not a political scientist, it's been a long time since I took civics, and I'm freaked out this morning. What would it actually take to roll back same-sex marriage? Would it take another court case and a Supreme Court friendly to that side? Would it take a Constitutional amendment? Googling this morning turns up lots of hits that talk about Trump wanting to turn back the clock, but no actual information on what would have to happen to do that.

[Please don't tell me this isn't as bad as I think it is. I live in a state that passed an anti-SSM amendment to its own Constitution, and more than half of my neighbors that voted voted for a man who explicitly said that undoing my marriage - or at least, allowing my state to do so - is one of his goals. I just want to know how hard that's going to be for this government.]

posted by joycehealy to Law & Government (5 answers total)

The good news is that to really reverse Obergefell would be hard. The justice who would replace Scalia would theoretically vote the same way, and the rest of the votes remain, so a reversal at the court is unlikely. A federal constitutional amendment is a non-starter. The process of ratification is just too hard. If anything, it would be in how the Justice Department dealt with states that weren't following the law. Even there, if the Justice Dept. turned a blind eye, citizens could directly sue states in federal district court, and while Trump will appoint judges to those courts as well, that turnover takes time.
posted by mercredi at 6:23 AM on November 9, 2016 [7 favorites]

Here's a pretty good article about that.

There are many steps before marriage equality is truly in trouble. It is deeply improbable that if you are currently married, you would be de-married. Consider than the tax code, military, ACA, etc. have all been written/rewritten to include same-sex married couples and that it would be a major hassle for the government to figure out what to do with people who were suddenly de-married.

I would mainly be concerned about married-Sunday/fired-Monday discrimination issues which we already face in many states; a worst case scenario I see as unlikely to happen is a Roe situation where there are some states where gay marriage is effectively outlawed through inaccessibility (say, if a case gets through that leads the court to rule that clerks have a right of conscience about whether they will marry people or not) but I think that's unlikely because there are so many steps that have to happen (more than one judge has to get replaced AND a case has to make it to the court AND they have to rule in favor AND states have to act AND individuals have to choose to be dicks about it...like, first you have to give the mouse the cookie, but....you can stop before you give him the glass of milk too.)

Seriously, the lack of protections for LGBT and gender-and-religiously-nonconforming people in most states is what I'm more concerned about. You will stay married. I don't believe in God, but I do believe that marriage is not a piece of paper but a choice that two people make for each other every day, and not the law, not the tax code, and not the court will ever unmarry you in your hearts. People in this country lived and loved through many years of absolutely no hope of marriage whatsoever, and if they can be tough enough to stay together, so can we. This is cold comfort if the worst does come to pass, but I think the truly worst-case is not going to happen.
posted by blnkfrnk at 6:23 AM on November 9, 2016 [2 favorites]

Short version is, yes, it would take another court case and an amenable Supreme Court, or a constitutional amendment. However, the former strikes me as a lot less likely even if there's a desire for it - the case would have to make it up to the Supreme Court in the first place, and on the way every court that looks at it would presumably say "Nope, open and shut, we had a ruling on this and it's all very simple." A constitutional amendment can do anything, and with the GOP in control of both houses & the White House - plus most state legislatures - it's definitely the plausible path.

(I do want to add that I think it's extraordinarily unlikely even with this new... regime, for a number of reasons. But I respect your desire to understand what could be done and certainly 'oh that seems unlikely' has served a poor guide to politics in 2016.)
posted by Tomorrowful at 6:24 AM on November 9, 2016 [2 favorites]

I don't think we're likely to see a full rollback. But Scalia will be replaced by another conservative justice, and then the balance of the Supreme Court rests on 83-year old Ruth Bader Ginsburg and 80 year old Anthony Kennedy surviving the next four years. I think the most likely cases you will see reach the court are around religious conservatives who want to be able to discriminate against LGBT folks in the name of "religious freedom" (including around marriage, but probably also in employment and other areas). And with more conservatives on the court, I think it's very possible we see that happen. I also worry for transgender folks -- the current rules that apply to educational institutions having to respect trans rights have been happening because of Obama's Department of Justice, and it's hard to see that a Trump DOJ won't reverse that.
posted by rainbowbrite at 7:54 AM on November 9, 2016 [2 favorites]

Another Supreme Court justice would need to die, and someone would need to challenge the law in court and make it to the new Supreme Court.
posted by corb at 9:15 AM on November 9, 2016