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Same-Sex Marriage Victors Ready to Refight Battle Already Won

Aug. 16, 2022, 8:45 AM

Three attorneys on the team that drove the US Supreme Court’s 2015 ruling to legalize gay marriage feel new anxiety after the high court’s June opinion overturning Roe v. Wade.

The court’s Dobbs v. Jackson Women’s Health Organization opinion voided the rationale that underpinned Roe, and Obergefell v. Hodges stood on similar reasoning. Although the majority opinion in Dobbs stressed the ruling was limited to abortion, Justice Clarence Thomas’ concurrence called out Obergefell as a ruling to reconsider.

That left Obergefell’s legal team in a position some didn’t think they’d be in just seven years after winning their case—strategizing in case the Supreme Court strikes down that opinion, too.

“I absolutely thought that was not something our country would ever revisit. I still hope that it’s not,” said Shannon Minter, legal director of the National Center for Lesbian Rights. Now, marriage equality lawyers must “go back and fight battles that I thought we would never again have to fight,” he said.

Thomas’ concurrence was just one of many setbacks this year in the legal battle for gay rights. Advocates also are grappling with state laws limiting discussion of LGBTQ issues in schools and targeting transgender youth.

Nevertheless, after 40 years of fighting for marriage equality, Mary Bonauto, who argued Obergefell before the high court, remains undaunted at the prospect of years more litigation ahead.

“We’re in fight mode,” Bonauto said.

Different Histories

Bonauto said she is preparing for the worst, but doesn’t think Obergefell will be the next precedent to fall.

The histories are different, she said. Marriage has long been legally understood as a base of liberty, and Obergefell is rooted partially in the equal protection clause, while Dobbs isn’t. Additionally, lower courts are bound to follow the majority opinion in Dobbs, which says the ruling is limited to abortion.

“I believe we are right, and I believe that at the same time, like others, I am concerned about the environment we are in,” Bonauto said.

Douglas Hallward-Driemeier, who argued Obergefell alongside Bonauto, sees marriage protections as inseparable from other substantive due process precedents Thomas threatened in his concurrence. Marriage rights build on the historic advances of the civil rights movement, he said.

State Battles

Minter said he’s never been busier in his three-decade career.

State lawmakers have filed anti-LGBTQ legislation at record numbers this year even prior to the Dobbs ruling, much of which targets transgender people. Minter’s team had already challenged an Alabama law criminalizing medical care for transgender youth, a Utah ban on transgender girls participating in school sports, and Florida’s law limiting discussion of LGBTQ issues in schools.

“It’s not that we’re waiting for something bad to happen in the wake of Dobbs,” said Minter. “It already had begun, and it’s now accelerating at a frantic pace.”

Just as decades of state-by-state litigation laid Obergefell’s roots, Hallward-Driemeier said he expects challenges to marriage equality will push “around the edges of marriage.”

Protections afforded to same-sex married couples are likely to get targeted first, he said.

States have attempted to hollow out marriage protections “since day one” of the Obergefell ruling, Bonauto said. Rearguard attacks include an effort to keep nonbiological same-sex parents from being listed on their children’s birth certificates, which legal advocates successfully challenged.

Calls to the GLBTQ Legal Advocates and Defenders (GLAD), where Bonauto works as director of the Civil Rights Project, have shot up since the Dobbs ruling. Parents wonder how a potential challenge to Obergefell could impact their families, Bonauto said

GLAD, alongside other organizations, published an advisory explaining how people can protect their parent-child relationships, Bonauto said. The group is also working on legislation in states such as Massachusetts to strengthen protections for same-sex parents.

While standing guard over threats to marriage equality, Obergefell’s legal team is ushering in the next cohort of young attorneys to take up the mantle, Minter said.

“I hope they feel a sense of responsibility,” Minter said. “They are in the generational position to make an enormous difference.”

To contact the reporter on this story: Maia Spoto at mspoto@bloombergindustry.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com