High-Profile Legal Experts Warn: The Courts May be Coming for Marriage Equality

by Kilian Melloy

EDGE Staff Reporter

Thursday October 7, 2021

Two high-profile lawyers warn that conservatives are coming for marriage equality, and the courts, including SCOTUS, could give them what they want, TheRealNews.com reports. And they aren't just any lawyers: They're Joe Dunman and Dan Canon, two members of the legal team that successfully litigated for marriage equality in Obergefell v. Hodges, the 2015 Supreme Court case that made marriage equality legal in every American state.

With the Supreme Court having stood back and allowed Texas' new law against abortion — the most restrictive in the nation — to come into effect, "GOP state legislatures smell blood in the water," Canon told the outlet, "and you'd better believe they're going to try to get away with whatever they can."

"We could see a situation where life and liberty is very different between blue and red states," Canon added.

Dunman had already issued a warning on Twitter about the ease with which the current Supreme Court, which boasts three Trump appointees — plus a system of lower courts that have been similarly packed with conservatives — could snatch marriage rights from millions of American families.

"A state in the Fifth Circuit re-bans gay marriage, the Fifth Circuit defies Obergefell and upholds the ban, and SCOTUS grants cert.," Dunman posted, envisioning a theoretical sequence of all-too-plausible legal events. "Easily 5-4 to overrule, if not 6-3. No clever bounty system necessary!" Dunman added, referencing the Texas abortion law's novel strategy of making private citizens enforcers by empowering literally anyone at all to sue abortion providers and anyone who assists a woman in obtaining an abortion.

Canon foresaw a subtler, no less effective, approach that parallels the incremental erosion of abortion rights that conservatives have pursued across the decades. The path toward marriage equality being chipped at until it is essentially meaningless could lie in the conservative push for "religious freedom" exceptions that insulate service providers and even government employees from a duty to uphold rights and protections across the board.

"[I]f the judicial obsession with 'religious freedom' continues on its current trajectory, there's a good chance that the next Kim Davis wins," Canon said, referencing the county clerk in Kentucky who unsuccessfully sought to deny same-sex couples marriage licenses by claiming that being required to do so would violate her religious rights."

"Decisions like that add up, and could eventually work to nullify the Obergefell decision without directly overruling it," Canon added.

The two legal experts agree that lower courts will not be a safeguard against a challenge to marriage equality reaching SCOTUS, and warn that Democrats who rely on precedent and settled law to protect existing rights may be fooling themselves.

"Stop projecting your own respect for norms and sense of restraint onto the courts," Dunman said in a followup to his Twitter post. "They've already shown that norms and restraint mean nothing. The Fifth Circuit has repeatedly defied precedent and SCOTUS is enabling them on purpose."

Dunman prescribed an expansion of the Supreme Court's numbers, with the additional seats being filled by Biden picks, as a means of restoring balance to the court — a strategy that has been touted by progressives, but which more mainstream Democrats have shown little appetite for.

"This strongly suggests that most congressional Democrats don't really care much what the Supreme Court does," Dunman told the news site. "Their liberal voting base should wonder why that is."

Meanwhile, "Red-state Democrats seem to have it in their heads that we are still working with a rational, moral actor on the other side of the aisle, and not a creature that exists purely for the sake of grabbing power by whatever means possible," Canon said.

The parallels between conservatives' efforts to obliterate abortion rights and the hypothetical strategies Dunman and Canon have outlined are already in evidence: As The Real News.com noted, the same Texas lawmaker who authored that state's restrictive abortion ban, Jonathan Miller, took aim at Obergefell in an amicus brief "in the Supreme Court pertaining to a Mississippi court case challenging the constitutionality of Roe v. Wade."

"These 'rights,' like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence," Miller declared of marriage equality in the amicus brief.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.