Ben, I value your reporting, but respectfully, I don't trust you on this one. We said and believed the exact same things about Roe, and we all know what happened. I'm expecting us to lose. This article doesn't take into account how multiple justices have publicly gone on record about how they're in favor of overturning Obergefell.
I appreciate your honesty, and I hear your fear on this one! Because I'm not a lawyer, I've sent this question to a few trusted lawyer friends to get their take. The biggest difference I know off the bat is that this case isn't actually on the merits of Obergefell at all (where dobbs was about the merits of Roe). While closely tied, these cases don't have as easy a "connect the dots" legal relationship as it might seem. But stay tuned while I wait to hear back from some of my trusted legal sources!
Also Roe V Wade was never popular. It was ALWAYS devisive. whereas polling shows that a majority of Americans support same-gender marriage and it is a very TINY percentage who are opposed. It would be EXTREMELY unpopular to a majority of Americans to strip away these rights.
It's a good question! Historically from what I understand, it used to matter more. Less overall issue polling and more public opinion of/trust in the courts. Sometimes they will consider whether a legal question is one that the country is seeking an answer to. But I think right now, there's a lot more $$ and shadow conversations that make public opinion/trust in the supreme court a lower priority for some of them.
Okay, so if public opinion / trust is low priority for supreme court decision-making, in this case it seems a little irrelevant that polling shows majority in favor of marriage equality. AND Supreme Court is kinda taken over rn, no? Not sure if I trust their moral judgement on this one and under this admin.
ultimately marriage is a conservative institution (and it creates societal stability) so to take away a right that actually tames and capitalizes queer relationships would be radical rather than reactionary at this point. also it would not take away marriage rights. we would have people married in one state and recognized in the one next door if their state (like Kentucky) wouldn't legalize them. so it creates more problems than it solves and would spur a slew of lawsuits. the only people who "win" in this scenario are lawyers
Yes creates more problems lol. But isn’t that favorable for anti-lgbt agenda? Destabilize us more, prevent use from attaining social capital , economic capital etc. that cause more problems for us but not “them”.
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 DOMA 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, DOMA 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!
It’s the Respect for Marriage Act that protects federal recognition of same sex marriage, not DOMA. That’s the Defense of Marriage Act that restricted marriage to be between a man and a woman, which Respect for Marriage Act replaced
"I have an ultra-cautious approach, and I feel like it could happen; it might happen. Now, we have the Respect for Marriage Act, and I think that's great. We were there when it was signed. I thought that was fabulous! I think it's a very good protection. But I think what a lot of Americans are starting to feel is: Anything that's been done in the past, can get undone very very quickly these days—if people don't stand up and fight for it and try to stop it from happening. You know, I’m willing to do my part, but there's going to have to be a whole lot of other people who stand up, too. I think they're out there. I mean, marriage equality has never been more popular in America. Right? So everybody wants it, so my question is: Who doesn’t want it? There seems to be a very, very small segment of our population, and some of them are Catholic, some of them are Baptist, but it's a small percentage.
I don't know if it's 15 or 25 percent, but we can't let [that small] percent of our population determine policy and laws that are going to affect the vast majority of us who want something different. Who want things like marriage equality protected in our country, in our constitution."
I don’t believe that we’re “fear mongering.” We’re just watching closely, ready for trouble if necessary. And look at all the damage the Orange Narcissist Administration has already done. Let’s remain armed and dangerous.
I appreciate this! We absolutely need to remain informed and vigilant about the far right's agenda and attacks, *and* we need to be ready to mobilize and act. The ways we are currently talking about what's happening with Obergefell—as we've done with many issues before—go far beyond vigilance. We are sharing gloom and doom, "time to give up" attitudes that are paralyzing us. Knowing how to assess threat levels and sharing accurate information will be absolutely crucial in our ability to sustainably fight back against fascism and christian nationalism.
I’m no scholar, but it feels safe enough to join the choir still singing in the background that so much in the news right now is in attempt to distract purposefully and to take attention off the Epstein files. That “they” do this with such important and emotional issues is part of their cruel game. This is an awful marathon, but we cannot let them win.
Thank you, Ben. I have skeptical from the beginning that SCOTUS would overturn it--a very different Constitutional issue than abortion, for example. We can't be effective if we're constantly doom saying and hand wringing. Thank you!
Ben, thank you for this post and I sure hope you’re right. I grew up in France so I don’t fall for media frenzy, I prefer well researched information from progressive experts. To that point, when you mention DOMA in your piece, did you mean the respect of marriage act that was signed in 2022 to repeal DOMA?
You’re absolutely right!! Thank you for catching that and letting me know. I’ve been traveling this week and writing things much more hastily than usual and I just fixed it. Thank you!!
I agree with you on taking a breath. Just read Matt Ford’s piece in The New Republic. Sounds like the Kim Davis case isn’t the one that’ll kill Obergefell. Thomas and Alito clearly want it gone, but Davis is a weak plaintiff. The Court might try chipping away at marriage equality instead of blowing it up outright… for now. Still, with this SCOTUS and other cases like one from Idaho coming, it’s worth keeping our eyes on.
I am in agreement about this and have been trying to get people to understand the same: we should be vigilant but having media outlets (and regular folks) amplifying fear in shoddy click bait headlines is not productive. people seem to think this is inevitable when there is no proof. I also agree that is a way to fundraise and probably effective. people are apathetic in so many ways so maybe this will wake them up?
Ben, I value your reporting, but respectfully, I don't trust you on this one. We said and believed the exact same things about Roe, and we all know what happened. I'm expecting us to lose. This article doesn't take into account how multiple justices have publicly gone on record about how they're in favor of overturning Obergefell.
I appreciate your honesty, and I hear your fear on this one! Because I'm not a lawyer, I've sent this question to a few trusted lawyer friends to get their take. The biggest difference I know off the bat is that this case isn't actually on the merits of Obergefell at all (where dobbs was about the merits of Roe). While closely tied, these cases don't have as easy a "connect the dots" legal relationship as it might seem. But stay tuned while I wait to hear back from some of my trusted legal sources!
Also Roe V Wade was never popular. It was ALWAYS devisive. whereas polling shows that a majority of Americans support same-gender marriage and it is a very TINY percentage who are opposed. It would be EXTREMELY unpopular to a majority of Americans to strip away these rights.
Does public polling really matter though when the Supreme Court is making the ultimate decisions? Genuine Q
It's a good question! Historically from what I understand, it used to matter more. Less overall issue polling and more public opinion of/trust in the courts. Sometimes they will consider whether a legal question is one that the country is seeking an answer to. But I think right now, there's a lot more $$ and shadow conversations that make public opinion/trust in the supreme court a lower priority for some of them.
Okay, so if public opinion / trust is low priority for supreme court decision-making, in this case it seems a little irrelevant that polling shows majority in favor of marriage equality. AND Supreme Court is kinda taken over rn, no? Not sure if I trust their moral judgement on this one and under this admin.
ultimately marriage is a conservative institution (and it creates societal stability) so to take away a right that actually tames and capitalizes queer relationships would be radical rather than reactionary at this point. also it would not take away marriage rights. we would have people married in one state and recognized in the one next door if their state (like Kentucky) wouldn't legalize them. so it creates more problems than it solves and would spur a slew of lawsuits. the only people who "win" in this scenario are lawyers
Yes creates more problems lol. But isn’t that favorable for anti-lgbt agenda? Destabilize us more, prevent use from attaining social capital , economic capital etc. that cause more problems for us but not “them”.
maybe for that small group of people, but Capitalism always wins lol
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 DOMA 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, DOMA 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!
It’s the Respect for Marriage Act that protects federal recognition of same sex marriage, not DOMA. That’s the Defense of Marriage Act that restricted marriage to be between a man and a woman, which Respect for Marriage Act replaced
THANK YOU this is what using your friends is forrrrr lol
How did I forget about DOMA? Thank you!!
I also worked on this piece and Greg Bourke had some interesting things to say: https://queerloveproject.substack.com/p/greg-bourke-marriage-equality
"I have an ultra-cautious approach, and I feel like it could happen; it might happen. Now, we have the Respect for Marriage Act, and I think that's great. We were there when it was signed. I thought that was fabulous! I think it's a very good protection. But I think what a lot of Americans are starting to feel is: Anything that's been done in the past, can get undone very very quickly these days—if people don't stand up and fight for it and try to stop it from happening. You know, I’m willing to do my part, but there's going to have to be a whole lot of other people who stand up, too. I think they're out there. I mean, marriage equality has never been more popular in America. Right? So everybody wants it, so my question is: Who doesn’t want it? There seems to be a very, very small segment of our population, and some of them are Catholic, some of them are Baptist, but it's a small percentage.
I don't know if it's 15 or 25 percent, but we can't let [that small] percent of our population determine policy and laws that are going to affect the vast majority of us who want something different. Who want things like marriage equality protected in our country, in our constitution."
I don’t believe that we’re “fear mongering.” We’re just watching closely, ready for trouble if necessary. And look at all the damage the Orange Narcissist Administration has already done. Let’s remain armed and dangerous.
I appreciate this! We absolutely need to remain informed and vigilant about the far right's agenda and attacks, *and* we need to be ready to mobilize and act. The ways we are currently talking about what's happening with Obergefell—as we've done with many issues before—go far beyond vigilance. We are sharing gloom and doom, "time to give up" attitudes that are paralyzing us. Knowing how to assess threat levels and sharing accurate information will be absolutely crucial in our ability to sustainably fight back against fascism and christian nationalism.
I’m no scholar, but it feels safe enough to join the choir still singing in the background that so much in the news right now is in attempt to distract purposefully and to take attention off the Epstein files. That “they” do this with such important and emotional issues is part of their cruel game. This is an awful marathon, but we cannot let them win.
Thank you, Ben. I have skeptical from the beginning that SCOTUS would overturn it--a very different Constitutional issue than abortion, for example. We can't be effective if we're constantly doom saying and hand wringing. Thank you!
Ben, thank you for this post and I sure hope you’re right. I grew up in France so I don’t fall for media frenzy, I prefer well researched information from progressive experts. To that point, when you mention DOMA in your piece, did you mean the respect of marriage act that was signed in 2022 to repeal DOMA?
You’re absolutely right!! Thank you for catching that and letting me know. I’ve been traveling this week and writing things much more hastily than usual and I just fixed it. Thank you!!
I agree with you on taking a breath. Just read Matt Ford’s piece in The New Republic. Sounds like the Kim Davis case isn’t the one that’ll kill Obergefell. Thomas and Alito clearly want it gone, but Davis is a weak plaintiff. The Court might try chipping away at marriage equality instead of blowing it up outright… for now. Still, with this SCOTUS and other cases like one from Idaho coming, it’s worth keeping our eyes on.
I needed to read this. Thank you!
I am in agreement about this and have been trying to get people to understand the same: we should be vigilant but having media outlets (and regular folks) amplifying fear in shoddy click bait headlines is not productive. people seem to think this is inevitable when there is no proof. I also agree that is a way to fundraise and probably effective. people are apathetic in so many ways so maybe this will wake them up?