Despite concerns among advocates following the overturning of Roe v. Wade, a Supreme Court reversal on marriage equality unlikely in the near future. Several factors contribute to this assessment, ranging from the legal requirements for Supreme Court intervention to shifts in public opinion and key differences in the legal foundations of landmark rulings. The Axios article, ‘Why Advocates Doubt SCOTUS Will Revisit Marriage Equality,’ details the reasoning behind this cautious optimism.
The “Cases” and “Controversies” Requirement
A primary reason for skepticism about a swift reversal lies in the Supreme Court’s operational constraints. The Court’s jurisdiction is limited to deciding actual “cases” and “controversies.” This necessitates a “live dispute” brought before it to even consider revisiting a precedent like Obergefell v. Hodges, which established the constitutional right to same-sex marriage across the United States. As the Axios article highlights, theoretical challenges or symbolic resolutions are insufficient.
For example, while a state legislature might pass a resolution expressing disagreement with Obergefell, this alone does not create a justiciable controversy. A direct challenge would require a state to actively pass or enforce a law that explicitly violates the Obergefell ruling. Without such a concrete violation, the Supreme Court lacks the legal basis to take up the issue.
Strong Public Support for Marriage Equality
Another significant factor mitigating the likelihood of a Supreme Court reversal is the robust and growing public support for same-sex marriage. Recent polling data cited in the Axios article indicates that approximately 69 percent of Americans now support marriage equality. This level of support represents a substantial shift in public opinion over the past few decades.
A dramatic reversal by the Court in the face of such widespread support could be perceived as unpopular and potentially damaging to the Court’s institutional legitimacy. While the Court is not solely guided by public opinion, awareness of public sentiment inevitably plays a role in its decision-making processes. Furthermore, even among conservatives, the issue of same-sex marriage has become less contentious as it has become increasingly integrated into American society.
Legal Distinctions: Obergefell vs. Roe
Legal experts emphasize crucial distinctions between Obergefell and Roe v. Wade, the abortion ruling that was ultimately overturned. These differences further temper expectations of a similar fate for marriage equality. The Axios article points out that Obergefell rests on two pillars of the 14th Amendment: the Due Process Clause and the Equal Protection Clause. Roe, in contrast, was primarily based on privacy rights inferred under the Due Process Clause alone.
This dual foundation provides Obergefell with a more robust legal standing. The Equal Protection Clause argument, in particular, asserts that denying same-sex couples the right to marry constitutes discrimination, a claim that resonates strongly with evolving societal norms and legal interpretations. The presence of this additional constitutional argument makes Obergefell less vulnerable to legal challenges than Roe was.
Limited Appetite for Reversal
While Justices Clarence Thomas and Samuel Alito have expressed a willingness to reconsider Obergefell, it is widely believed that there may not be sufficient support among the current justices to overturn the decision entirely. Overturning a precedent requires a majority vote, and it is not clear that the necessary votes exist to dismantle the established right to same-sex marriage.
The composition of the Court is constantly evolving, and future appointments could potentially shift the balance. However, as of now, the legal and political landscape suggests that Obergefell is relatively secure.
Conclusion
In conclusion, while vigilance remains essential, advocates have reasons to believe that marriage equality is safe from Supreme Court reversal in the foreseeable future. The combination of legal hurdles, strong public support, and the dual constitutional basis of Obergefell provide a significant degree of protection. While challenges may arise, the current legal and political climate suggests that the right to same-sex marriage is likely to endure.
