Same-Sex Marriage Is Vulnerable Thanks to Supreme Court

July 12, 2024

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In the chaotic hours and days after a six-person Supreme Court majority essentially ended the federal right to abortion in the United States, it was easy to rush past the dissent issued by the bench’s liberal trio. In their blistering argument about the half-century of precedent that was imploding, they also warned of what else might collapse in the coming years quicker than a child’s wooden toy set.

“Faced with all these connections between Roe/ Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry,” the minority bloc wrote. “It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.)”

Put another way: While liberals are correct to freak out about the immediate impact from the Dobbs ruling, those fearful that the rights to contraception, marriage, and sexual choices are newly vulnerable are not overreacting. Among D.C.’s gay operative class, there’s the quiet resignation that the right to wed is likely to be on the docket in the next five years, and there’s not a whole lot protecting it. Do not, in any circumstance, listen when the majority says everything will be fine because it probably will not. Popularity can’t beat gravity. After all, blindly trusting the Jenga blocks to defy instability is seldom sage.

When the Supreme Court ended a half century of Roe’s rights, it did so over the objections of a majority of Americans. Polling ahead of the expected ruling excoriating abortion rights—there was the leaked draft, after all—showed a majority of Americans (55%) considered themselves “pro-choice.” Among self-described independents, 57% self-described as “pro-choice.” A paltry 13% of all Americans told Gallup pollsters that abortion should be made illegal. Among Republicans, 77% support abortion rights, although with some limits attached.

In other words, it was widely assumed that abortion rights were here to stay. Nominees for the Supreme Court had, with consistency and seeming conviction, said Roe was settled. Warnings that Roe was in danger were summarily brushed off as paranoia from candidates, activists, and outside groups alike. Abortion was seen as part of American life, an option for pregnant individuals who by and large could exercise their rights in most cases. State-based efforts to limit those rights were routinely set aside by courts. They won’t touch Roe was the implied thinking of a lot of voters, even as Presidents as far back as Ronald Reagan were nominating judges interested in doing exactly that.

Then the so-called unthinkable happened, and the anti-abortion crowd landed the win they’ve been chasing for decades. A 49-year precedent fell in one Supreme Court term. Which demands the required question: What other rights could be dismantled under the similar logic?

Congress in recents weeks has set in motion efforts to shore up the rights to same-sex and interracial marriage. A surprising 47 Republicans joined House Democrats in passing the Respect for Marriage Act, looking to protect the right to wed for all couples. Democratic Sen. Tammy Baldwin is trying to round up 10 Republican Senators to join a unified Democratic caucus to protect marriage, and she’s about halfway there.

A week earlier, just eight Republicans joined House Democrats in passing a separate bill to protect access to contraception. Of those eight, half are not planning to return to Congress next year, suggesting their party views the issue as a clunker with its base. An effort to pass it through the Senate by unanimous consent got derailed when Republican Sen. Joni Ernst of Iowa objected.

This isn’t another sign of how polarized America is. The numbers tell the story of an out-of-touch opposition. A sky-high 92% of Americans support contraception, according to Gallup, and 88% of Republicans say it’s an acceptable moral choice. On the question of marriage, 71% Americans support same-sex marriage, a speedy shift since the Supreme Court in 2015 made that right universal. There’s little downside, even for Republicans; a full 55% of Republicans now back those rights.

In Washington, the Republican leadership has cast the votes on contraception and same-sex marriage as back-door efforts by Democrat to chip away at Dobbs, giving rank-and-file Republicans an excuse to stand against what they repeated called an unnecessary election-year stunt meant to fuel paranoia. That gave members a little cover, although it’ll look pretty flimsy if the worst predictions come to pass.

So what the heck are Republicans doing? Is it just sheer hypocrisy? It’s easy to make that charge, although it doesn’t carry the sting it once did. After all, Republican Rep. Glenn Thompson voted against buttressing marriage rights earlier this month, and three days later attended the wedding of his gay son; he isn’t likely to suffer any real consequences outside of family reunions. Is the opposition coming from certain religious denominations? Not broadly, the polling finds: Catholic majorities have supported same-sex marriage since 2011 even if their leadership had other thoughts; Protestants got there in 2017. The Religious Right is a far cry from its once mighty days.

So many politicians are creatures of the power chase. Going wobbly on something like abortion or LGBT rights can spiral in the hands of the right cynic who can link it to the GOP’s ongoing culture wars about parental rights and transgender student athletes. It’s not that there are many single-issue voters on those topics, but votes supporting the rights of pregnant individuals or gay couples may be used as a proxy for character and morals—and Washington overreach. And in a party still helmed by ex-President Donald Trump, showing weakness is a cardinal sin, and thwarting Democrats’ agenda is meritorious on its surface.

If the fall of Roe taught a whole lot of Americans anything, it is this: assuming something dating back a half century is durable is a sucker’s bet. Even basic human rights are negotiable with the appropriate mix of ideology and imagination. In the hands of this Supreme Court and its lifetime appointees, very little is permanent if confronted with a novel-enough argument. These Justices are ruling based on their beliefs, and polling provides no protections. There will, in fact, be few consequences for the conservative Justices. The three liberals on the Court understood that and are warning about what comes next. The only question is what block in this Jenga game the majority reaches for next.

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