Could an anti-gay marriage case be brought to the Supreme Court?

[The world will shine with light in our nightmare]

While I personally doubt Obergefell is in danger even with a conservative supermajority on the Supreme Court, is there a way that a case that could plausibly result in the overturning of Obergefell could make its way to the Supreme Court, perhaps on a Tenth Amendment basis from an ultraconservative Bible Belt state attorney general?

[Tintrlvr]

What a state government could do is start refusing to acknowledge same-sex marriages (either just as a regulatory matter or perhaps because the state legislature or a referendum passes a new statutory ban), then wait for a same-sex couple to sue to enforce their right to marry/be recognized as married. It's hard to see how the case could be initiated by a state government, but, at the same time, LGBT rights organizations wouldn't be able to simply sit back and let a state stop recognizing same-sex marriages without suing.

The lower courts would obviously summarily rule in favor of the couple on the basis of Obergefell (I think even conservative lower court jurists wouldn't be willing to flatly deny recent Supreme Court precedent), but the Supreme Court could, in theory, overrule itself, once the case got there. There are definitely at least two votes to do so (Barrett and Thomas), and I wouldn't trust any of Alito, Kavanaugh or Gorsuch on the issue.

[redjohn]

The idea that this is a possibility is deeply disturbing and unsettling. The Christian extremists have stolen the Supreme Court, and I have no doubt that they will force their agenda on the American people through the lens of constitutionalism.

[Chunk Yogurt for President!]

The idea that this is a possibility is deeply disturbing and unsettling. The Christian extremists have stolen the Supreme Court, and I have no doubt that they will force their agenda on the American people through the lens of constitutionalism.

LMAO

[Wrenchmob]

Maybe. It will depend on if the lower courts determine Obergefell as settled precedent.

[True Federalist (진정한 연방 주의자)]

I don't see any State government that would be willing to intentionally pass the sort of law that would be needed to bring Obergefell up for reconsecration by SCOTUS.  Perhaps a law that limited a benefit of marriage only to "real marriages", and if that withstood SCOTUS review then maybe try for the whole enchilada.

So yeah, the path forward that could be tried is pretty obvious, but whether there is a State willing to try is less obvious.  Gay marriage is already far less controversial than abortion, in part because there's nothing to point to as an "innocent victim" like there is with abortion.

[All Along The Watchtower]

I don't see any State government that would be willing to intentionally pass the sort of law that would be needed to bring Obergefell up for reconsecration by SCOTUS.  Perhaps a law that limited a benefit of marriage only to "real marriages", and if that withstood SCOTUS review then maybe try for the whole enchilada.

So yeah, the path forward that could be tried is pretty obvious, but whether there is a State willing to try is less obvious.  Gay marriage is already far less controversial than abortion, in part because there's nothing to point to as an "innocent victim" like there is with abortion.

What if a law is passed in some Republican-controlled state legislature giving preferential treatment to straight couples with children in various ways? Conservatives could/would frame opposition to such a law as being "anti-mother" or "anti-family." Would certainly check some important Culture War boxes!

[I spent the winter writing songs about getting better]

I can't see any state as a rule refusing to issue marriage licenses to same-sex couples or denying benefits to legally married same-sex couples. There just isn't the political will for that battle anymore.

The most I could see is some Kim Davis type refusing to do so and in regards to her case even Thomas and Alito denied cert although Thomas wrote a scathing critique of Obergefell that Alito joined, indicating even they're kind of reluctant to touch it again. Thomas did say this raises issues of "religious liberty" the Court will have to sort out and thus it was a bad decision for unleashing that but I can't see how that goes much further than those silly cases about people refusing to bake cakes for gay weddings or whatever.

[True Federalist (진정한 연방 주의자)]

I don't see any State government that would be willing to intentionally pass the sort of law that would be needed to bring Obergefell up for reconsecration by SCOTUS.  Perhaps a law that limited a benefit of marriage only to "real marriages", and if that withstood SCOTUS review then maybe try for the whole enchilada.

So yeah, the path forward that could be tried is pretty obvious, but whether there is a State willing to try is less obvious.  Gay marriage is already far less controversial than abortion, in part because there's nothing to point to as an "innocent victim" like there is with abortion.

What if a law is passed in some Republican-controlled state legislature giving preferential treatment to straight couples with children in various ways? Conservatives could/would frame opposition to such a law as being "anti-mother" or "anti-family." Would certainly check some important Culture War boxes!

It would be the most likely type of precursor case, but I'm not certain there's any place that would care enough to attempt it.  Until and unless Roe gets overturned in full, abortion is going to continue to be the issue social conservatives are going to be willing to risk a backlash on.

[The world will shine with light in our nightmare]

Wiki also says that ACB has previously stated that Lawrence v. Texas and Obergefell are settled precedent.

The reason Roe was left off her list of superprecedents is that cases are generally not considered superprecedents unless their decisions have widespread and long-lasting support. Barring some hard-right state trying to restrict marriage licenses again or try to treat same-sex couples differently (pretty unconstitutional on its face), I would be very surprised if the status quo changed on either of those cases. The only reason they're not superprecedents yet is that they are both relatively new.

But none of the abortion-related cases will ever be superprecedents and I tend to agree with ACB on this. There is no, and there's never really ever been, reason to suppose that Roe or Casey would be ironclad. Abortion is going to be a contentious issue tossed around the courts and state legislatures in perpetuity. Unless a Republican or Democratic trifecta is able to either ban or legalize abortions with proper safeguards federally, legal abortions will continue to be more accessible in blue states than in red states. But I don't see full nationwide bans or relaxing of abortion restrictions happening under this Court.

[Kingpoleon]

Wiki also says that ACB has previously stated that Lawrence v. Texas and Obergefell are settled precedent.

The reason Roe was left off her list of superprecedents is that cases are generally not considered superprecedents unless their decisions have widespread and long-lasting support. Barring some hard-right state trying to restrict marriage licenses again or try to treat same-sex couples differently (pretty unconstitutional on its face), I would be very surprised if the status quo changed on either of those cases. The only reason they're not superprecedents yet is that they are both relatively new.

But none of the abortion-related cases will ever be superprecedents and I tend to agree with ACB on this. There is no, and there's never really ever been, reason to suppose that Roe or Casey would be ironclad. Abortion is going to be a contentious issue tossed around the courts and state legislatures in perpetuity. Unless a Republican or Democratic trifecta is able to either ban or legalize abortions with proper safeguards federally, legal abortions will continue to be more accessible in blue states than in red states. But I don't see full nationwide bans or relaxing of abortion restrictions happening under this Court.

It’s hard to call Roe v. Wade a super precedent when Burger - who may have been the deciding factor in its passing - expressed his discomfort with the decision, as did even Kennedy and O’Connor.

[The world will shine with light in our nightmare]

Wiki also says that ACB has previously stated that Lawrence v. Texas and Obergefell are settled precedent.

The reason Roe was left off her list of superprecedents is that cases are generally not considered superprecedents unless their decisions have widespread and long-lasting support. Barring some hard-right state trying to restrict marriage licenses again or try to treat same-sex couples differently (pretty unconstitutional on its face), I would be very surprised if the status quo changed on either of those cases. The only reason they're not superprecedents yet is that they are both relatively new.

But none of the abortion-related cases will ever be superprecedents and I tend to agree with ACB on this. There is no, and there's never really ever been, reason to suppose that Roe or Casey would be ironclad. Abortion is going to be a contentious issue tossed around the courts and state legislatures in perpetuity. Unless a Republican or Democratic trifecta is able to either ban or legalize abortions with proper safeguards federally, legal abortions will continue to be more accessible in blue states than in red states. But I don't see full nationwide bans or relaxing of abortion restrictions happening under this Court.

It’s hard to call Roe v. Wade a super precedent when Burger - who may have been the deciding factor in its passing - expressed his discomfort with the decision, as did even Kennedy and O’Connor.

How would Burger have been the deciding factor in a 7-2 ruling?

[Kingpoleon]

Wiki also says that ACB has previously stated that Lawrence v. Texas and Obergefell are settled precedent.

The reason Roe was left off her list of superprecedents is that cases are generally not considered superprecedents unless their decisions have widespread and long-lasting support. Barring some hard-right state trying to restrict marriage licenses again or try to treat same-sex couples differently (pretty unconstitutional on its face), I would be very surprised if the status quo changed on either of those cases. The only reason they're not superprecedents yet is that they are both relatively new.

But none of the abortion-related cases will ever be superprecedents and I tend to agree with ACB on this. There is no, and there's never really ever been, reason to suppose that Roe or Casey would be ironclad. Abortion is going to be a contentious issue tossed around the courts and state legislatures in perpetuity. Unless a Republican or Democratic trifecta is able to either ban or legalize abortions with proper safeguards federally, legal abortions will continue to be more accessible in blue states than in red states. But I don't see full nationwide bans or relaxing of abortion restrictions happening under this Court.

It’s hard to call Roe v. Wade a super precedent when Burger - who may have been the deciding factor in its passing - expressed his discomfort with the decision, as did even Kennedy and O’Connor.

How would Burger have been the deciding factor in a 7-2 ruling?

A number of reasons, most notably because he chose who wrote the opinion. It’s very hard to imagine all seven Justices having signed on board with the opinion otherwise, particularly when virtually every single one of them (besides Blackmun and Burger) took issue with the opinion they signed on with.