The Supreme Court on Monday declined an opportunity to overturn its landmark precedent recognizing a constitutional right to same-sex marriage, tossing aside an appeal that had roiled LGBTQ advocates who feared the conservative court might be ready to revisit the decade-old decision.
Instead, the court denied an appeal from Kim Davis, the former Kentucky county clerk who now faces hundreds of thousands of dollars in damages and legal fees for refusing to issue marriage licenses after the court’s decision in Obergefell v. Hodges allowed same-sex couples to marry.
The court did not explain its reasoning to deny the appeal, which had received outsized attention – in part because the court’s 6-3 conservative majority three years ago overturned Roe v. Wade and the constitutional right to abortion that 1973 decision established. Since then, fears about Obergefell being the precedent to fall have grown.
And yet we have a case right here that suggests they don’t have a way to do that. There are too many gay couples who got married, and nobody wants to sort out the mess of them suddenly losing that.
They may not have felt that this was a good case for their purposes. Or enough of them may have felt that this was a bad time for it. Hell, maybe a couple of the conservative justices just don’t care enough to want to revisit the issue.
But respect for the law, the constitution, and the rights and wellbeing of the people hasn’t been evident in many of their recent opinions. Letting half the states pretend a fraction of marriages never happened wouldn’t even be the most disruptive thing they’ve done. They endorsed racial profiling, made racial gerrymandering presumptively legal, made prosecuting bribery essentially impossible, overturned abortion rights, and crowned Trump as king and gave him a license to kill. And that’s ignoring all the shenanigans happening on the shadow docket where they don’t even bother justifying their decisions. That they’ve at least drawn something of a line against the Trump administration trying to eliminate due process altogether makes sense only because letting go of due process would mean giving up some of their own influence.
If they want to rule arbitrarily on this, then there’s no reason to avoid this particular case. If they don’t want to rule arbitrarily, then they need to think through the implications, and there is no getting around some major practical issues.
Thomas has explicitly signalled that he wants to revisit Obergefell, and Barrett probably would, too. Roberts, Kavanaugh, and Gorsuch, though, probably want to leave it alone, and combined with the three liberal justices, they ended it all right here.