Will Trump’s New SCOTUS Judge Mean the End of My Gay Marriage—and So Many Others?
A new Trump-era SCOTUS pick may mean marriage equality is under threat. This is not a ‘sentimental’ issue for the author, ‘and for many LGBT people. It is a matter of survival.’
In a few days, my wife and I will have been married for two years.
Justice Anthony Kennedy’s retirement is not exactly a great anniversary present.
The 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide, is now within spitting distance of being overturned—or, as Jay Michaelson pointed out in The Daily Beast, at least severely limited.
With the near certainty of a far-right replacement for Kennedy, the sort of tangible rights that same-sex couples like mine have only begun to taste could be yanked away.
Our marriages—if we still have marriages in every state—might be relegated to some sort of second-class status that would allow basically anyone to turn us away. At the very worst, the United States could become the second country in the world after Bermuda to repeal same-sex marriage rights after previously recognizing them.
This is not a sentimental issue for me—and for many LGBT people in my position; it is a matter of survival. It is about clinging to some small buoy of stability in a country where, often, the only inviolable way to secure vital benefits is to legally entangle your life with someone else’s. I have done that—and undoing it would be devastating.
In 2015, when Justice Kennedy wrote the 5-4 majority opinion in Obergefell v. Hodges, effectively legalizing same-sex marriage nationwide, it wasn’t the soaring rhetoric about love and the human condition that appealed to me most. His idea that “marriage embodies a love that may endure even past death” was beautiful, yes, but it didn’t feel like some sort of revelation from on high.
My wife and I didn’t need the words of a straight judge, emphatic though they were, to validate the fact that our feelings for each other are sacred. A million precious moments of our own experience—walking together in the Vermont snow, wiping tears off each other’s faces, idling away long afternoons—had already made us confident of that.
What we cared about most were the nuts and bolts of the thing: Inheritance rights, taxes, health benefits. Not exactly the sort of stuff you can wax rhapsodic about—although taxes, too, “endure even past death.”
A year after the Obergefell decision, we went down to the courthouse alone—me in a department-store dress, my wife in white pants—and giggled our way through what could barely be described as a “ceremony.” It wasn’t an evolution of our commitment, so much as it was a formal recognition that we both knew it was time to secure.
But what I wouldn’t give now for someone who gets all sorts of flowery, lovey-dovey feelings about gay weddings to take Kennedy’s place on the Supreme Court.
As it stands, the shortlist of potential replacements for Kennedy seems far less likely to support the LGBT cause than he did. President Trump, who once claimed that he was “respectful and supportive of LGBTQ rights,” is all but guaranteed to pick an arch-conservative substitute for the more moderate Kennedy, as Michaelson observed. Same-sex marriage, which once seemed so settled, now hangs in the balance.
There are, according to a 2017 estimate from the Williams Institute at the UCLA School of Law, at least 1.1 million American adults who are in same-sex marriages. (The precise number is unavailable because LGBT people have been—and under Trump will continue to be—uncounted on many federal data collection measures like the U.S. Census.) That’s over 547,000 couples who would potentially, depending on where they lived, have to figure out how to “uncouple” if Obergefell fell.
With Masterpiece Cakeshop and other court cases looming on the horizon, we were already worried about being legally discriminated against in the name of religion. Now, those of us in same-sex couples have to come up with a backup plan for unmarried life, just as many of us were getting settled into married life in the first place.
For my wife and I, that looks like a series of questions, each with challenging answers: How does one of us get health insurance if the other can’t access it? How do we do our taxes? How do we make sure we’re both legal parents of any future children?
Would we accept a domestic partnership as a concession prize from Uncle Sam—or do we join some sort of lawsuit with 1.1 million possible plaintiffs? If the former, would we even be living in a state that recognized our domestic partnership?
As a queer, transgender woman, too, marriage is especially important to me. With widespread reports of transgender people being mistreated in hospitals and emergency rooms, it’s a great comfort to me to know that nurses and doctors would have my legal spouse to deal with rather than my domestic partner.
I am lucky enough to have a supportive family, but other transgender people would need a supportive spouse to be ensured that they are treated with dignity and respect after death, rather than buried as their birth-assigned gender by unsupportive family.
According to the 2015 U.S. Trans Survey conducted by the National Center for Transgender Equality and the National LGBTQ Task Force, a combined 69 percent of transgender people identify as bisexual, pansexual, queer, lesbian, or gay. The L, the G, the B, and the T are more jumbled together than one might presuppose.
So, now, not only do I and other transgender people face the prospect of a Supreme Court taking hardline conservative stances on our specific rights, many of us are also in the same position as cisgender lesbian, gay, and bisexual people: Wondering what will happen to our relationships, which often serve as lifelines in a hostile world.
My coldest comfort is that a full overturning of Obergefell is the worst-case scenario going forward.
Opinions on the likelihood of that event vary: Mark Joseph Stern at Slate argued in 2017 that if “Kennedy is replaced by a Gorsuch-style conservative,” Chief Justice John Roberts could essentially make a same-sex marriage license effectively meaningless by denuding it of its benefits. Writing after the Kennedy retirement, Dylan Matthews at Vox disagreed, arguing that recent shifts in public opinion on the question of same-sex marriage “might make Roberts more hesitant to chip away at the right.”
But if that’s the worst case, that means there are a dozen other possible outcomes between now and then, ranging from the logistically challenging to the potentially life-changing. We shouldn’t have to reassure ourselves that there’s only a chance of an apocalyptic outcome for LGBT Americans, but that’s exactly where we are today.
In a sense, though, that’s not concretely different from where the American LGBT community in was yesterday, or the day before that. The Trump administration spent its first year steadily undermining LGBT rights—and especially transgender rights—wherever they possibly could.
Justice Kennedy’s retirement is a “wake-up call,” as Human Rights Campaign president Chad Griffin put it in a statement, but the threats Kennedy's absence now represents were already present.
That’s why LGBT rights groups are beating largely the same drum they have been since President Trump took office, just louder now that the Supreme Court is meaningfully in play: Vote, vote, vote.
Griffin urged in his statement, “we need [to] turn out like never before this November,” and for people who want to live to see LGBT rights become deeply enshrined in our laws, that urgency just got turned up to 11. A federal legislature that supports LGBT people is the only meaningful check on an executive branch and a judicial branch that are spinning wildly toward discrimination.
Love may indeed last beyond death. But in the here and now that is 2018, same-sex marriage—my marriage—might not survive Kennedy’s retirement unscathed. That threat only makes it clearer that the fight for full LGBT equality is far from won; it lies many anniversaries from now.