What if a Drumpf SCOTUS overturned Obergefell v. Hodges ?

[DemocratSinceBirth]

We had a democratic republic prior to the election of Trump, albeit a flawed one, where individual rights were protected while the will of the majority was respected. We don't get to vote on what rights our fellow citizens have.

What if a Drumpf SCOTUS overrules the marriage equality decision?

Beside creating an uproar which would highlight the divisions in this nation and raise the anger to DEFCON levels it would also have practical problems. The Constitution specifically prohibits ex post facto laws; the government can't criminalize something that was legal after the fact. Many same sex couples are legally married.

[shenmue]

1. Sue big time

[WhiteTara]

4. SCOTUS is the last word.

If they overturn, there will be no suing.

[shenmue]

15. Aaaack

[yeoman6987]

2. Trump supports gay marriage or he used to

It would be a disaster if that happened.

[WhiteTara]

5. No more so if they overturn Roe v Wade

and they plan on doing that.

[DemocratSinceBirth]

8. SCOTUS couldn't do anything about the people who are already legally married

Article 1 Section 9

No bill of attainder or ex post facto Law shall be passed.

[tritsofme]

19. A decision overturning Obergefell likely wouldn't seek to ban marriage equality nationwide

But would allow individual states to ban it. How these individual states would then deal with legal Obergefell-era same sex marriages would be a huge fight.

I'm not sure where their "creative" legal theories to dissolve current valid marriage arrangements would lead, but I agree restrictions on "ex post facto" laws would seem to be a good protection.

[csziggy]

7. He has said recently that gay marriage is "settled law" because of the SCOTUS decision

Why that doesn't also apply to Roe v. Wade which has been settled law for far longer, I don't understand.

[yeoman6987]

9. Yeah that is weird.

Although his beliefs change on a dime. He could be socially liberal but who knows.

[csziggy]

11. True - the short fingered vulgarian has been on every side of nearly every issue

What seems to be more constant is his hatred of minorities and his misogyny. With his stand on those two issues I can't support him ever even if he came out as completely liberal on every other cause.

[DemocratSinceBirth]

16. He has no core beliefs or moral compass. He's a sociopath.

[treestar]

50. I'm pretty sure in my guess that he is socially liberal

and lied to get the R nomination. No way he is pro life or religious or cares at all about the Bible supposedly prohibiting homosexuality.

[yeoman6987]

52. I agree

[FBaggins]

32. It doesn't much matter what he says

It matters what the judge he picks thinks.

I don't have much faith that most of the options on "the list" will share his stated position on the issue.

[jberryhill]

27. What "Trump supports" means nothing once a justice is appointed

You don't get justices on a cafeteria basis.

[yeoman6987]

30. So far at least 2 or 3 repug picks turned liberal on the bench

So far Souter being the best.

[tritsofme]

3. The Court as currently constituted, has a pro-Obergefell majority, even with Scalia's replacement

being made by Trump.

The risk is if one of the five seats that decided Obergefell were to come open during Trump's term, marriage equality will be one of a myriad of accomplishments and chapters of progress that will be erased.

[DemocratSinceBirth]

6. I can't see a right as fundamental as that taken away.

It would still have to work its way through the federal courts and four SCOTUS jurists would have to vote to hear it.

[tritsofme]

12. There were four who dissented in Obergefell, of them I can only imagine Roberts

not voting to overturn, and one must assume if the Kennedy/Breyer/Ginsberg seat(s) were to become open, that the new justice along with Scalia's replacement would form a majority to overturn Obergefell.

It wouldn't be difficult to get a case before them if equality opponents sniffed blood, all they would have to do is find a red state and have them pass a new law banning "gay marriage." Progress, while real, is very fragile.

[DemocratSinceBirth]

14. That state would be committing economic suicide.

The boycotts would make the boycotts of North Carolina and Indiana look like child's play. And don't forget those two red states capitulated.


It would be a shit-show.

[tritsofme]

20. The next four years are going to be a shit show.

Unfortunately, I'm sure there ismore than one state with an ambitious RW governor/AG who would love to be the martyrs that "save marriage"

[KamaAina]

26. Notorious R.B.G. is 83.

[0rganism]

10. are you looking to the rule of law to save us from what has happened?

i wish i could share your whimsical optimism
i cannot. we have reached the end of the line for our current body of law.
soon there will be new laws, new precedents, new realities that we will be left to scrape over for bits of meaning in the coming decades

[DemocratSinceBirth]

13. I am looking to the rule of the markets to save us.

If he goes full Hitler he will roil the markets and the Powers that Be will be unhappy. Goes back to my seminal post. We paper over a lot of our differences and these difference are profound because the alternative is worse, like a civil war.

It's like a married couple that stays together but stops asking one another if they are still in love because they are afraid of the answer.

[0rganism]

17. Trump and his inner circle can make billions shorting stocks

they're rich and connected enough to be insulated from financial catastrophe by way of falling stocks and failing companies

Trump's less affluent supporters will enjoy watching the "liberal elite" eat shit as their assets crumble before their eyes

[DemocratSinceBirth]

18. As goes Wall Street so goes Main Street.

If the market was to truly crash the nation would crash with it.

That is the check I see on Drumpf.

[0rganism]

21. Main Street? sounds 20th century to me

as you say, the nation would crash along with the markets
and from that crash will arise the America desired by the Trumpists

i imagine Trump's voters will be very enthusiastic to live in the world of brute force, where their racism, xenophobia, and misogyny will finally carry the weight of law and the means to enforce it at will.

[DemocratSinceBirth]

22. With more guns than people there will be no winners.

In a nation with more guns than people there will be no winners in a Mad Max world. The Tony Sopranos among us would thrive and while many of the Deplorables might match his proclivity for violence few have the intelligence to harness it to practical ends.

[0rganism]

23. but there will be plenty of "winners"

we're just going to have to rethink what "winning" means.

it doesn't mean you and seven generations of your offspring thrive, living in an environment of peace and plenty in harmony with the world around us. not anymore.

henceforth it means retribution, striking pain and terror in the hearts of your perceived enemies. of course, you need to keep getting more and more enemies for this to work long-term, so that's an investment Trump will happily make on our behalf.

there's going to be so much "winning", we're going to get tired of all the "winning". "winning" for everyone.
i, for one, am willing to take him at his word on this much.

[FBaggins]

33. Assuming a crash in that scenario is probably a mistake

After all, pre WWII Germany had robust economic growth.

[DemocratSinceBirth]

34. What scenario?

Trump starts acting like Hitler?

[uponit7771]

28. +1

[angrychair]

24. Can't be "reversed"

It's already been ruled on. The USSC doesn't subvert its own rulings. The specific ruling is rock solid.

Yes, they could attempt to come at this from a different angle, completely unique from the existing case law, they could attempt to make gay marriage illegal but the bar is now significantly higher and it would have to fight through the entire legal system first.

In short, no matter the make-up of the court, it is incredibly unlikely to change.

[DemocratSinceBirth]

25. I tend to agree...

Regardless of how reich wing justices are at the District Court and the Court Of Appeals level justices will be reluctant to re-litigate a right that is taken for granted. And Obergefell v. Hodges flows from Lawrence V Texas which legalized same sex acts based on the due process clause. A court can't logically invalidate one without the other.

[jberryhill]

29. "It's already been ruled on. The USSC doesn't subvert its own rulings."

Bwahahahahah.

Compare Bowers V. Hardwick - 1986
https://en.wikipedia.org/wiki/Bowers_v._Hardwick

"Bowers v. Hardwick, 478 U.S. 186 (1986), is a United States Supreme Court decision, overturned in 2003, that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults, in this case with respect to homosexual sodomy, though the law did not differentiate between homosexual sodomy and heterosexual sodomy.[1]

The majority opinion, written by Justice Byron White, reasoned that the Constitution did not confer “a fundamental right to engage in homosexual sodomy”."

Lawrence v. Texas - 2003
https://en.wikipedia.org/wiki/Lawrence_v._Texas

"Lawrence v. Texas, 539 U.S. 558 (2003) is a landmark decision by the United States Supreme Court. The Court struck down the sodomy law in Texas in a 6-3 decision and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory. The Court, with a five-justice majority, overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy.

Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly."


--------------



That's only 17 years to a complete over-ruling of a Supreme Court decision.

Granted, it went in a direction we favor, but the reason for this taking only 17 years, was entirely a function of the composition of the court.

[DemocratSinceBirth]

31. I can not think of an instance though where SCOTUS confirmed a right than withdrew it.

And Lawrence V Texas was the precursor to Obergefell V. Hodges. If the 14th Amendment gives me an unalienable right to fuck anybody I want it gives me a right to marry anybody I want. Antonin Scalia predicted Lawrence would open the door to marriage equality and he was right.


BTW, the Court subverted it's own ruling in Brown V Board of Education when they overruled Plessey V Ferguson. However that is an instance of conferring a right, not withdrawing one.

[jberryhill]

36. Then you should consider the difference between Roe and Casey...

...and all of the shenanigans which followed Casey.

[DemocratSinceBirth]

37. They are whittling away at Roe. I won't dispute that.

Doesn't seem much whittling is available with Obergefell v. Hodges. Either Mary can marry Beth and Joe can marry John or they can't.

Also, justices aren't immune from political pressure. Polls indicate views on abortion are much more nuanced than views on marriage equality. There are many views on when and when not legal abortion is available and under what conditions it should be available. Either you believe same sex couples can marry or you don't.

The Courts can do what they want. I just don't think they like to turn upside down existing arrangements.

[jberryhill]

38. You might find this video engaging....

[DemocratSinceBirth]

39. I watched most of it live.

Life is strange. If we didn't stop Bork we would have never got Justice Kennedy.

[jberryhill]

40. Well the exchange at around 14 or 15 minutes in is interesting

Bork is saying, relative to Griswold v. Connecticut that it was based on unsound reasoning. Biden asks him if he's ever come up with a sound rationale for the result in Griswold "in all of your short life" and Bork says no.

[DemocratSinceBirth]

41. Griswold established a right to privacy but it was really about buying rubbers.

That was one bullet we dodged.

[jberryhill]

49. They've got more bullets

I am of the belief that they will dig up the most execrably doctrinaire "original intent" jurists who will have no problem overturning cases all the way back to Griswold and beyond.

This is especially true if Trump does not complete his term, and Pence is left with a majority-determining appointment.

I do not believe Trump himself understands that once he appoints a Supreme Court justice, and that justice is confirmed, then it's not as if Trump will have any say in what that justice does.

Evangelicals know that the path toward overturning Casey, Roe, and anything that supports those decisions, is now wide open. That's why they voted for this man who is otherwise a profound walking, talking contradiction of everything they profess to believe.

Our ability to predict "how things are going to turn out in the future" has received a serious re-calibration recently. All bets are off on "what the Supreme Court ought to do".

[DemocratSinceBirth]

55. We get by because we have paper over our differences.

If they want a cultural war I guess there is no stopping them. I don't want to be crude but the left has money. We will punish those states with boycotts.

BTW, Bill Clinton appointed Trump's sister to the bench. I can't believe he would have appointed a wing nut.

[jberryhill]

56. There's no indication his sister is crazy

As anyone with a crazy brother can attest.

[treestar]

51. exactly

Anyone who gets on SCOTUS is now part of that historical "we" as they refer to themselves for old decisions citations of cases before they were born. They have pride in becoming part of that institution and respect its precedent.

Prolifers are insane to vote for Rs just because they pander to that. Not only are they voting against their own interests in everything else, but their vote will have no effect whatsoever as regards what they want.

[lame54]

60. Does the same apply to Roe v Wade?

[angrychair]

65. Yes, based on its existing case law

You cannot just flip an existing ruling. Justices are not just going to get together and start flipping rulings they don't like. First, not all of them are going to agree, even conservative justices.
A unique and compelling case with standing would have to work its way through the court system and still agreed to be heard by the USSC.

I mean unique, as in one that hasn't already been tried in the last 43 years. It's not like people haven't been biting around the edges to see what they can get away with limit it or trying to get a case to the USSC to reverse it.

I can tell you unequivocally (because every Justice on the court was put there after roe v wade) that changing even a couple of Justices is not going to doom gay marriage or the right to an abortion. It's not that straight forward or partisan like Congress.

[brooklynite]

35. Unlikely to occur

The difference is that you now have thousands of married couples whose legal status would be affected.

[onenote]

42. Undoing same sex marriage rights wouldn't turn anyone into a criminal

So your concern about ex post facto laws is misplaced. As to whether the Court could reach a different conclusion as to whether same sex couples are denied equal protection by laws denying them the same marital status as opposite sex couples - they could and it's a reasonable fear that they might if given the opportunity.

[DemocratSinceBirth]

43. I didn't suggest overturning Obergefell would turn same sex married couples into criminals.

I did suggest overturning it couldn't invalidate existing legal same sex marriages because of the Constitutional prohibition of ex post facto laws

[onenote]

44. The constitutional prohibition on ex post laws only applies to criminal laws

As your op seemed to acknowledge when you. Said the constitution bars criminalizing something after the fact.

[DemocratSinceBirth]

45. Marriage is a legal contract.

[onenote]

46. Yes but breaking a contract is not a crime

Laws invalidate previously lawful contracted for behavior all the time.

[DemocratSinceBirth]

47. So what happens to those marriages?

Marriages that resulted in contracts, tax consequences, government benefits, and immigration.

[LisiFFXV]

57. As someone with a B.S. in political science...

(who happened to take my fair share of con law classes...)

what would happen would simply be a return to where we were pre Obergefell. In other words, marriages would fall back to the states. Everyone in a state that the laws on the books currently allow for same-sex marriage would be unchanged, whereas those in other states would just end. It would be as if they never occurred and you were suddenly single.

The ONLY provision I can think of that could be in play is what is known as the "contract clause"... which basically says that no state can step in and just eliminate legal contracts. (This would, potentially, "grandfather" in those who were already in same-sex marriages.) However, this would be a last ditch effort. It would have to be brought to multiple courts around the country and would take years to work its way through. A good team of attorneys could possibly get a few courts to side with them, but it would be a cluster fu** with likely multiple different rulings around the country. The worst part? After the district and appellate courts had their say, you can be assured that someone somewhere would appeal to the Trump appointed SCOTUS... and I don't need to tell you what the final word would be.

Under such a scenario, the BEST option would be to try to change marriage laws in as many states as possible to legalize same-sex marriage that don't already have it on the books.

[DemocratSinceBirth]

63. There are all sorts of legal benefits avaliable to married couples.

Those couples made plans based on those benefits. Those plans would be burst asunder.

[onenote]

64. The courts have generally held that marriage itself is not a contract

Of the type protected by the contract clause but rather is a "status". And the invalidation of a marriage likely wouldn't invalidate many contracts since it is rare for a contract to be contingent on one side of the contract being married (not surprising given the frequency with which divorce occurs in the US).

That's not to say that it wouldn't be a confusing litigious mess.

[Txbluedog]

48. It would have to be Trump's second pick before it's even considered

once one of the original yes votes is off the court, then it may be considered. However, I doubt SCOTUS would reverse one of their own rulings

[onecaliberal]

53. They're hell bent on overturning Roe, nothing is safe.

[napi21]

54. I don't see it happening. I believe the SCOTUS does not take away anyone's right(s) that have been

granted. No matter who the Con nominates to fill the vacancy.

[briv1016]

58. They're not going to waste the politial captal to overturn it.

Their main focus will be to enact more bathroom and right to refuse service laws. Possibly federally funding conversion "therapy." Now overturning Roe v. Wade is a separate matter.

[Behind the Aegis]

59. Then people like me would be fucked in a major way.

Despite the caviler attitude of many straight people, this is a real fucking possibility. Who gives two shits if the president-elect is "about" this law being overturned, his goddamned VP IS! Not to mention his entire appointed cabinet! My marriage wouldn't be "criminalized" it would simply be dissolved. The big question would be if we would be required to pay "back taxes" on the years we were married as approved by the federal law, even if we were married in a state which allowed marriage equality.

Too many people don't realize how tenuous the rights of the GLBT are. The legal processes would start all over and be even more difficult because many states would strike things down knowing the SC will back their play.

I can't say I am surprised by those who think "this won't happen", "they aren't interested in doing something like this", it shows how clueless people are in regards to LGBT matters. There are those who are real allies to us, but way too many who claim to be allies but aren't even remotely close to being an ally. To them, our rights aren't "real" civil rights. Our lives don't matter. Our families aren't "real".

The only upside (?) is too many of us are unwilling to go back in the closet.

[oberliner]

61. Make sure Ginsburg and Breyer don't retire

I hope they can stick it out.

[Yo_Mama]

62. It won't happen - there's strong precedent, and it can't be undone.

What will probably will happen is that a photographer who doesn't feel comfortable with doing a same-sex wedding will be carved out a safe harbor, as will church schools, etc.