Legal experts generally agree that Obergefell v. Hodges, the case that legalized same-sex marriage nationwide, will likely survive a new lawsuit attempting to overturn it, but that right-leaning justices could move to weaken LGBTQ rights, experts told Salon’s Marina Villaneuve.
Kim Davis, the Rowan County Clerk in Kentucky who gained notoriety a decade ago when she ignored a federal court and refused to recognize same-sex marriages, is still refusing to pay hundreds of thousands of dollars in damages to those whose rights she denied. Her lawyers are now appealing that decision, trying to get the Supreme Court to hear arguments to overturn Obergefell, citing the same court’s decision that the right to abortion guaranteed in Roe v. Wade “is not deeply rooted in the history and traditions of the Nation.”
“Nothing is safe from the attack of this court’s conservative majority,” said Mary Ann Case, a professor at the University of Chicago Law School. “They can tear down precedent at will, which means it’s hard to know what the law is and what it’s going to be in the future.”
Ira Lupu, professor emeritus at George Washington University, said the lawsuit was a cynical move to funnel donations into the coffers of the Liberty Council, the organization that primarily funds Davis.
“They make money fighting for people like Kim Davis, and when they say that, it brings a lot more attention to the case. Not just that she doesn’t have to pay damages or attorney’s fees.”
But he warned that if the court moved to overturn Obergefell, “it would be like setting off a volcano” that could have far-reaching ramifications, including for banks that issued mortgages in the couple’s names.
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One of the most vocal on the issue is Jim Obergefell, the same plaintiff in the original lawsuit. One of the reasons he filed the lawsuit is because without the right to marry, he might not have been able to say goodbye to his partner, John Arthur, as he fought for his life in a Catholic hospital. Obergefell could not be listed as the surviving spouse on Arthur’s death certificate, and he could not be buried in Arthur’s family cemetery.
“The backlash against that, the fight against infringing on people’s right to marry who they love, began immediately, and this is just an extension of that, now supported and led by a Supreme Court justice,” Obergefell told Salon.
“The judges clearly do not care about precedent and will overturn laws based not on true law but on personal attitudes, beliefs and prejudices. They will overturn past decisions. And every right we enjoy in this country is at risk,” he said.
