The LGBT community and its allies are wondering: was Trump just pandering to the right with his anti-LGBT talk during the campaigns or will President Trump affirmatively seek to roll back marriage equality? Only time will tell, but given Trump’s consistent history of opposing marriage equality over the past 17 years, it is important to at least consider whether, from a legal perspective, he could undo the equal marriage rights granted by the Supreme Court.
It is not far-fetched that he might try to reverse hard fought gains. To understand that risk, let’s start with the recent history that led to the recognition of equal rights. In 2013, in a 5-4 ruling the Supreme Court struck down the federal Defense of Marriage Act (“DOMA”) as unconstitutional (Justices Roberts, Scalia, Alito and Thomas dissented). DOMA had barred the federal government from recognizing same-sex marriages legalized by the states, so in striking the statute down, the Court took the first step towards marriage equality. In 2015, in another 5-4 decision called Obergefell v. Hodges (the same four Justices – Roberts, Scalia, Alito and Thomas – dissenting), the Court held that the Constitution’s Fourteenth Amendment requires states to license marriages between same-sex couples and to recognize same-sex marriages that were lawfully performed in other states. Since that ruling came down, Justice Scalia died and his Supreme Court seat has sat vacant. It will likely be quickly filled after inauguration day.
Enter Trump. In January 2016, when news host Chris Wallace asked then-candidate Trump if he would try to appoint Supreme Court justices to overrule the Court’s same-sex marriage decision, Trump answered, “I would strongly consider that, yes.” One might dismiss this as off-the-cuff, but the non-partisan fact checking website Politifact finds that since 2000 Trump has consistently voiced opposition to marriage equality, making this a rare issue that Trump has maintained a consistent, strong opinion about. Now, with Republican control of the senate and the most virulently anti-gay Republican platform ever, Trump is unlikely to encounter opposition if he seeks to scale back this right.
From a legal perspective, Trump would face two hurdles to seek reversal of the marriage equality Supreme Court decision. The first is having the Court balance on his side. Replacing Justice Scalia with a Justice who opposes LGBT equality won’t get Trump there – the Obergefell decision was 5-4, and Justice Scalia was already part of the four in opposition. But three of the Justices who voted to legalize same-sex marriage may be nearing the ends of their tenure: Ruth Bader Ginsburg is 83, Anthony Kennedy is 80, and Stephen Breyer is 78. Trump would need the opportunity to replace another Justice, in addition to Scalia’s seat, before he could find 5 Justices who might be willing to overturn the decision.
The second hurdle is a doctrine called stare decisis (Latin for “to stand by things decided”). According to stare decisis, Supreme Court precedent is supposed to be stable, so that citizens can rely on it. In this case, people got married, started families, and made all sorts of personal and economic decisions in reliance on the marriage equality decision. The Court is not supposed to blow with shifts in the political winds, so stare decisis sets a high bar for overturning current precedent. To overturn marriage equality there would need to be the right plaintiff to bring suit, the case would need to work its way through the lower courts, and the plaintiff should be required to provide compelling evidence that legalizing same sex marriages was harmful to the country. It is possible that one of the remaining three Obergefell dissenters or new Justices would decide that stare decisis and the integrity of the Court outweigh an interest in overturning marriage equality because once the Court is perceived as just a political tool of one party or the other, its authority is compromised. And time is on marriage equality advocates’ side. The burden will be on the dissenters to try to justify the roll back of rights, which will be particularly challenging a few years from now, when everyone can see that the sky hasn’t fallen and the institution of marriage hasn’t crumbled.
Of course, there are still other ways that the new administration could try to oppress the LGBT community. Emboldened Republicans just last week voted to allow the federal government to discriminate against the LGBT community through contracting. But, let’s take comfort where we can – at least it should be hard to undo marriage equality.