Despite becoming national law in 2015’s Obergefell v. Hodges, gay marriage may be overturned if Supreme Court Justice Anthony Kennedy, the justice who wrote the Obergefell opinion, decides to retire in 2018 as some reports suggest.
As Slate noted, marriage equality will remain the law of the land as long as Kennedy, the decision’s author, remains on the bench. But with Kennedy signalling to at least one law clerk applicant that he’s considering retirement, all bets are off — and indeed, some states have already begun mounting challenges to the ruling.
On June 26, two days before the two-year anniversary of the court’s landmark marriage equality ruling, the court voted to uphold the core tenants of Obergefell in Pavan v. Smith. Despite the 5-4 ruling that Arkansas must enact all the benefits given to opposite-sex couples upon same-sex couples, a jarring dissent from Chief Justice John Roberts suggests that if it were up to the court’s conservative wing, gay marriage would have less weight in the eyes of the law.
In his “noxious and cruel” dissent, Roberts accused the court of “inventing” a “new right” and “imposing” it upon the country. He went on to claim that the decision “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage,” disregarding the constitutional rights of the LGBTQ people entirely.
Along with Roberts, Justice Neil Gorsuch, the newest member of the court and the one chosen by President Donald Trump, dissented as well — and the content of his dissent, according to Slate, appears to have been heard “loud and clear.” Shortly after the Pavan ruling and the conservative wing’s dissent, the Texas Supreme Court voted to block some aspects of the Obergefell ruling in defiance of the decision the SCOTUS made days prior.
As Slate noted, rights can be chipped away without completely overturning court cases, as is evident with abortion rights. For now, both marriage equality and reproductive rights remain relatively intact — but if reports about Kennedy’s possible 2018 retirement are true, it might not stay that way.