SCOTUS won’t revisit marriage equality. But the fight isn’t over

On Monday the Supreme Court turned down a request to reconsider its landmark marriage equality affair At first glance this appears to be a clear accomplishment for LGBTQ advocates Ten years ago in its - ruling in Obergefell v Hodges the court identified that The fundamental liberties protected by the Fourteenth Amendment extend to certain personal choices central to individual dignity and autonomy including intimate choices defining personal identity and beliefs Marriage it announced is a centerpiece of social order and fundamental under the Constitution Restrictive marriage law the majority determined harm and humiliate the children of same-sex couples burden the liberty of same-sex couples and abridge central precepts of equality But for President Donald Trump and his MAGA allies ending marriage equality has long been an crucial goal Outlined in Project it has been moving along without much fanfare History teaches us that the battle for equal justice under the law is never really over that it may take a long time before social movements can achieve their goals Progress is often slow and success comes only after repeated failures History teaches us that the battle for equal justice under the law is never really over that it may take a long time before social movements can achieve their goals Progress is often slow and success comes only after repeated failures Take the effort to outlaw racial segregation in community schools that culminated in the Supreme Court s landmark Brown v Board of Training decision As Georgetown University Law Center professor Mark Tushnet explained Brown was the culmination of a sustained campaign of strategically designed litigation Lawyers subsequently took the strategic litigation campaign they saw ending in the triumph of Brown as a model for their own causes and developed strategies to use litigation in the arrangement of a wide range of causes women s rights prison amendment abolition of capital punishment protection of property rights and the undermining of affirmative action among others You could add to that list the -year campaign that led to Dobbs v Jackson the matter that overturned Roe v Wade in June and ended the constitutional protection of reproductive rights Dobbs provides an ominous warning about the eventual fate of marriage equality Despite the court s refusal to reconsider Obergefell the right s campaign to overturn the decision is not over Supporters of marriage equality should refrain from resting on their laurels and mobilize to resist MAGA s ongoing campaign to take away another right from the American people Related John Roberts is slowly dismantling America In framing arguments that Obergefell damaged democracy by removing the question of whether to allow marriage equality from the people and their representatives conservatives are building on the strategy they used to successfully overturn Roe Like the anti-abortion crusade the effort to end marriage equality is a long competition The first shots were fired by Justice Clarence Thomas in his stinging dissent to Obergefell The majority s decision at present he wrote will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing due process before a person is deprived of his life liberty or property Thomas was clear He yearned to ensure the Constitution could not be used to expand rights He was however happy to see it used to restrict them Thomas called the idea that liberty was referenced in the due process clause a dangerous fiction warning that so-called substantive due process exalts judges at the expense of the People from whom they derive their authority He also saw in the Obergefell decision a threat to the religious liberty our Nation has long sought to protect and predicted it will have inestimable consequences for our Constitution and our society Almost before the ink was dry on Thomas opinion conservative and religious activists began their counterattack on Obergefell Spearheaded by a pro-family activist organization called Mass Resistance which was founded to confront assaults on the traditional family school children and the moral foundation of society the campaign has already shown success Want more sharp takes on politics Sign up for our free newsletter Standing Room Only written by Amanda Marcotte now also a weekly show on YouTube or wherever you get your podcasts Legislators in nine states have sponsored laws designed to limit or roll back same-sex couples right to marry Several of the bills explicitly call on the Supreme Court to overturn Obergefell Others seek to carve out a special kind of marriage called covenant marriage which would be restricted to one man and one woman Returning to the fray in Thomas used his concurring opinion in Dobbs matter to again denounce substantive due process as an oxymoron that lack s any basis in the Constitution He regretted that his colleagues had not gone further to roll back all of this Court s substantive due process precedents Obergefell he wrote was one of those precedents That s why people like Hillary Clinton the former secretary of state and Democratic presidential nominee have warned that the Supreme Court will do to gay marriage what it did to abortion The matter that Thomas teed up and that the Supreme Court refused to hear on Monday came in the form of an appeal by Kim Davis the former Kentucky county court clerk who served six days in jail after denying marriage licenses to gay couples in based on her religious beliefs Following her release from jail a couple who claimed Davis discriminated against them sued her and a jury ordered her to pay more than Davis who is represented by lawyers affiliated with Liberty Counsel a group dedicated to advancing religious freedom the sanctity of human life and the family through strategic litigation grounded her appeal in the suggests of religious liberty under the First Amendment maintains that have often carried the day with the current court We need your help to stay independent Subscribe in the current era to help Salon s progressive journalism Her development mounted a full-scale assault on Obergefell and unabashedly channeled the views Thomas has repeatedly expressed Obergefell she argued in her petition was based on a legal fiction Her descriptions of the decision s alleged damage were unequivocal egregiously wrong deeply damaging far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed Obergefell set out on a collision program with the Constitution from the day it was decided and did great damage to the moral fabric of the nation Davis the petition continued may have been one of the first casualties of th e Court s cavalier recovery of religion in its Obergefell decision but she will not be the last Various forget that Davis has tried this before In she petitioned the court to reconsider the event Over the strenuous objection of Thomas and Justice Samuel Alito she was denied Her return to the court five years later with the same request is a reminder of how litigation campaigns work Their leaders know that Rome wasn t built in a day and that learning from defeats can prepare the way for conquest Read more about this topic John Roberts betrayed America for Trump Thanks to Trump and the Supreme Court we re facing a dire legal crisis Anti-trans activists pray SCOTUS upholds conversion therapy The post SCOTUS won t revisit marriage equality But the fight isn t over appeared first on Salon com