Take a Deep Breath on Obergefell

Hey folks! I’m writing this quickly because I’m heading out to a conference but I NEED US TO SLOW DOWN in our panic spiral about Obergefell (marriage equality).

What happened: Kim Davis, who in 2015 was jailed for 6 days and fined about $360,000 for refusing to issue marriage licenses to gay couples (as a state employee, this is important!) has sued multiple times to have her fine overturned.

She has failed on every appeal thus far, including a federal appeals court panel that concluded earlier this year that the former clerk "cannot raise the First Amendment as a defense because she is being held liable for state action, which the First Amendment does not protect."

Now, she’s asked the supreme court to weigh in. Actually, she asked them a month ago, but the media decided now is the moment to whip everyone into a frenzy and tell them they “have to get married right now before it’s completely illegal!” (this is incorrect.)

While I can make no promises, nearly every legal scholar I trust has pointed out this is incredibly unlikely to succeed.

Editing this post to add something a trusted and brilliant lawyer friend sent to me when I asked her how this is different than what happened with Roe:

Okay! I chatted with a lawyer friend and here's what I heard from her on how what's currently being attempted with Obergefell is different than what happened with Roe!

1. You fear and sadness are valid in this environment.

2. I am worried for Obergefell but this particular case asks legal questions that are not a great vehicle for what those who want to overturn want to do. There is enough out there that they likely know they can get a “better” or “more acceptable” plaintiff. Kim Davis is not a very sympathetic character.

3. It is true this SCOTUS is unpredictable so we don’t know, but a different case would better serve the purpose of overturning. That could come up at some point.

4. Even if Obergefell is overturned, the Respect for Marriage Act, which is FEDERAL LAW, still exists. We did not have any adjacent federal abortion protections because folks said "we have Roe, don't worry about it!". If you are legally married in one state all other states must recognize the marriage even if they don’t allow them in their state.

5. Yes, RFMA could be overturned but getting that through the Senate with these margins would be difficult and they have lots of other priorities to spend political capital on right now. Marriage equality is also fairly popular in public polling across political parties. While the Supreme court might not care a lot about that, the Senate does!

PS. Thanks to folks who caught my typo on DOMA vs RFMA!

Okay back to my own thoughts!

“But Ben! What about all those states that had resolutions asking the Supreme Court to overturn it?” Great question! Those resolutions failed in every single state! They didn’t pass, and also are meaningless, legally.

“But Ben! Don’t the hyper-conservative folks want to overturn this? I don’t trust the Supreme Court!” Girl, me neither. AND from what I understand, this case doesn’t give them the window they need, legally, to overturn Obergefell, and the question of how someone would vote on a ruling is different than the question of whether they would vote to take on a case. ACB, for example, almost never votes to grant cert to cases (she didn’t vote to take on Dobbs, for example).

Even sources I normally trust to be a bit more measured have been mongering fear like nobody’s business. When we say that every conversation about LGBTQ+ folks in the news/politics is bad for our mental health, we aren’t just saying that the origins of the stories are bad for us. The call is coming from inside the house.

The way we talk about stories like this is often irresponsible at best, and borderline malicious at worst. “Obergefell to be overturned” is no doubt the most successful fundraising call many national queer rights organizations will see all year. News outlets will see HUGE spikes in shares and comments, and social media creators are getting huge traction on their videos about how “inevitable it is”. My motto rings true here: your despair is someone else’s business model.

I don’t want marriage equality to be overturned. I hope it isn’t. But what I can say is if we start talking constantly as if it’s already happened, versus talking about how inappropriate it would be if they did take up the case based on Kim’s lack of standing, we are giving them cover to take it up.

There’s no doubt they’re watching very closely how we are acting and responding right now. Running around panicking and crying and coming to like chickens without heads—or acting like they’ve already done it and we need to move on—is not going to send a particularly dissuasive message.

Long story short: It’ll be about a month until we hear what they’re doing. I can make no promises, but I would be genuinely surprised if they took this up. In the interim, please be cautious of fearmongering!

Strongly consider setting some extra social media boundaries this week. Maybe even take a hiatus from scrolling. Go for a walk. Hang out with a queer friend or two. Get an ice cream. Go be a person.