Amy barrett and gay rights

The constitutional right of same-sex couples to marry remains good law under the ruling of Obergefell v. Casey gives reason to worry that the Court will also refuse to respect Obergefell as precedent. If a couple lives in New York, gets married there, then subsequently moves to Texas, the RFMA guarantees federal recognition of their marriage and bars Texas from refusing to recognize that legal relationship simply because they are a same-sex couple.

If Justices Amy Coney Barrett and Brett Kavanaugh have set their sights on marriage equality then the conservative majority probably already has the votes to overrule Obergefell and it is possible the election results will prompt them to act. At the very least, this would mean same-sex couples could not get married going forward in anti-marriage states.

Coney Barrett defended the Supreme Court’s dissenters on the landmark marriage equality case of Obergefell v. The danger that Obergefell will be overruled will probably not get materially worse until the Chief Justice steps down and that is not likely to happen soon. Supreme Court Justices Clarence Thomas and Samuel Alito may step down to give a Republican President the opportunity to replace them but whatever else those appointments would represent they cannot get any less favorable on marriage equality than Thomas and Alito.

The RFMA does not guarantee a right to marry. Instead, the statute does two things that are important but more limited. Chief Justice John Roberts, who dissented in Obergefell , nonetheless voted to apply and enforce that ruling in a case involving birth certificates for the children of married same-sex couples, perhaps indicating he has accepted Obergefell as precedent despite his disagreement with it.

The results of the national election have raised concerns among many married same-sex couples about the legal status of their relationships going forward. Wade and Planned Parenthood v. What would happen to same-sex couples who had previously gotten married in those hostile states?

Congress enacted a federal statute in , the Respect for Marriage Act RFMA , that will provide some help to same-sex couples in this scenario, but that help may be less robust than people assume. That is a complicated question. It would be a mess. Important as these protections are, their scope and robustness remain uncertain.

President Donald Trump and Supreme Court Associate Justice Amy Coney Barrett on October 26, Her confirmation to the Supreme Court has concerned those lobbying for abortion and LGBTQ rights. Amy Coney Barrett’s history tells a story of anti-LGBTQ ideology, opposing basic rights thought to be settled law, and an anti-choice ideology out of step with popular opinion.

Barrett’s position on gay rights is particularly crucial after two of the high court’s conservative justices, Clarence Thomas and Samuel Alito, this month wrote a dissenting opinion that. Sen. Mazie Hirono, D-Hawaii, called out Supreme Court nominee Amy Coney Barrett for using the term "sexual preference" when referring to a landmark case on same-sex marriage.

While the Court is not going to get any better for marriage equality in the next four years, the breakdown of votes on this issue probably will not change any time soon. If the right-wing Justices do overrule Obergefell they will impose immediate consequences for the right to marry in states around the country.

The most consequential disputes under the RFMA are likely to involve disagreements over the types of state and local policies the statute will recognize as prohibited discrimination. It provides that couples who are validly married under state law will have their marriages recognized for federal purposes; and it prohibits states from discriminating against same-sex couples in situations involving state-to-state recognition.

That said, the danger is already real. While any appointments to the Court that may happen in the next four years will probably not hasten the overruling of the constitutional right of same-sex couples to marry, those couples must already treat the scenario as a serious prospect.

Those concerns are warranted. Although it is unlikely couples will be in immediate danger of losing their rights after the new Administration and Congress take power, the current composition of the U. Supreme Court already puts those rights on uncertain footing and the election results may embolden hostile actors looking for opportunities to target gay couples.

Justice Gorsuch joined Justices Thomas and Alito in dissent in that case. Any state laws still on the books that prohibit same-sex couples from marrying would snap back into effect, just as old abortion laws did following Dobbs. State laws do not get struck from statute books or state constitutions when they are found unconstitutional; they simply become unenforceable.

Imagine a couple who lives in Texas goes to New York for the weekend, gets married, then returns to Texas and asks to have their marriage recognized. There are very good reasons not to invalidate existing marriages in this scenario based on long-standing due process concepts of reasonable expectations and vested rights.

With the exception of statutes found invalid under state constitutions, all such existing provisions would go back into effect. Congress probably does not have the power to enact marriage equality by statute in a post- Obergefell world.