Same-sex marriage in the United States is in danger: first request for repeal in the Supreme Court

WashingtonAmid the advancement of Donald Trump's ultraconservative agenda against the LGBTIQ+ community, with particular cruelty toward transgender people, one of the greatest fears of lawyers and activists is the repeal of the ruling protecting same-sex marriage. Following the veto of numerous LGBTIQ+ books in schools and institutes, and the banning of transgender people from the military and school sports leagues, the first explicit petition to overturn this ruling, known as Obergefell, now arrives before the Supreme Court. Just 10 years after federal recognition of same-sex marriage, the high court—with a conservative majority—has the opportunity to decide whether to accept the case or dismiss it.

The petition was filed by Kim Davis, a Kentucky county clerk who spent six days in jail in 2015 for refusing to issue a marriage license to a gay couple immediately after the Obergefell verdict that same year. In the lawsuit, which was released by ABC News, Davis says she was discriminated against for refusing to issue the certificates and, based on this argument, also asks the court to review whether Obergefell should be overturned. Furthermore, she calls the court's decision in Obergefell v. Hodges, which extended the rights of heterosexual marriages to same-sex couples under the umbrella of the 14th Amendment, "outrageously serious."

The 14th Amendment guarantees equal protection for all Americans and is key to the defense of civil rights. It is also the amendment that Trump has brought to the Supreme Court after attempting to overrule the recognition of birthright citizenship via executive order.. Unlike other countries, such as Spain, where babies inherit the nationality of their parents (blood ius), in the United States all children born in the country are Americans (ius solis). Trump wants to change it to stop recognizing the children of undocumented immigrants as US citizens. The Supreme Court is expected to rule on the merits of the case in October.

Ultraconservative groups and Christian white nationalism have long been behind the Obergefell ruling, and Davis's case may be the gap through which it can be overturned. In her argument, Davis clings to the First Amendment right to religious freedom and says it immunizes her personally from the Obergefell ruling. From there, Davis's attorney, Mathew Starver, says that the argument on which the Obergefell ruling was based is a "legal fiction" and "an error that must be corrected." The Supreme Court already has its first hearing scheduled for September 29, where it could decide whether to accept the case.

The precedent of Roe v. Wade

The case resonates especially with the 2022 repeal of Roe v. Wade, the Supreme Court ruling protecting abortion rights at the federal level. In this case, the lawsuit was initiated by a lawsuit filed by the Jackson Women's Health Organization—the only clinic that performed abortions in Mississippi—against a state health department official over the state's ban on abortions after 15 weeks. The ruling, which overturned the 1973 ruling and paved the way for the current situation, where abortion rights are completely suppressed in 12 states.

When Roe v. Wade was decided, conservative Justice Clarence Thomas suggested in his opinion that the same argumentative logic that struck down abortion rights at the federal level could be used to overturn Obergefell and other protections as well. In fact, Davis had already filed a similar petition in 2019, which focused solely on her case and did not explicitly ask for Obergefell to be overturned. Nor did the precedent of Roe exist. In the Supreme Court's ruling that denied the petition, both Thomas and the other conservative justice, Samuel Alito, noted that the issue called for reconsideration of Obergefell for "threatening religious liberty." "This petition raises important questions about the scope of our Obergefell decision, but it does not clearly raise them," Thomas wrote in a statement.