feature image photo by Philip Yabut via Getty Images
After gay marriage passed federally in 2015, I went dancing in West Hollywood with my sister and some friends. On the street in front of the country western bar Flaming Saddles (RIP), my situationship Liz and I made out in celebration. Weirdly, a man nearby whistled at us. Liz turned to him and yelled, “NOT TODAY, SIR.” He skedaddled away in shame. That day, we were invincible.
Ten years later, under Donald Trump’s fascism, whispers began that Obergefell v. Hodges, the Supreme Court case that legalized gay marriage, could be on the chopping block. Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to gay couples and whose trial was the impetus for the ruling, has filed an appeal. Davis, a slug who came to life after a witch’s curse, kicked up panic among queer people that the Republican majority Supreme Court might take up her case.
Don’t panic yet! But Davis could win. Some other losers from the Liberty Counsel took on her “religious freedom” case, even though it is unlikely to advance to our highest court.
That being said, most everything left-wing activists have been warning could happen has happened. We have a solidly right-wing (6-3) Supreme Court who worship at the feet of an orange dictator. “We won’t allow gay marriage to be taken away!” Democrats cry. People said the same about Roe, and here we are post-Dobbs.
Justices Clarence Thomas, a sex pest who takes bribes, and Samuel Alito, a blight to Italian-Americans everywhere, have hinted at re-litigating both Obergefell and 2003’s Lawrence v. Texas (which would make queer intimate acts illegal — but only when gay people do them). Justice Thomas explicitly named Lawrence in his Dobbs concurrence. If Lawrence were overturned, states could theoretically create a legal foundation for attacking gay marriage rights as well.
I’ve crunched the numbers and Obergefell being overturned could, in my opinion, be the last straw for a new civil war. The political divide is already so deep. The right is mobilized, militarized, and declaring the left and transgender people terrorists. Where racism and xenophobia don’t move liberals to action, the cultural seems to.
Attacking freedom of expression moved Democrats constituents. I’ve been working on the ground since June with other dedicated anti-ICE activists, attending city council and police commissioner meetings, traveling to an illegal detention center in the desert, and protesting outside the Metropolitan Detention Center where ICE, DHS, and LAPD beat and arrest my friends. The numbers of us putting our bodies on the line to fight fascism dwindled after the incredible movement of No Kings Day. The next time I witnessed hundreds of people outside to protest was last Thursday in front of Disney/ABC to support Jimmy Kimmel after his show was cancelled because the Trump administration didn’t like a joke.
It was surreal to hear speakers on megaphones say Kimmel’s firing and the restriction of free speech was “a step too far,” when I’ve spent months watching Latinos be hit with batons or dragged away from their families sobbing. But sure, if this is what it takes to get liberals on the streets, then fine.
So my thought is if Kimmel mobilized the privileged and the white, then the overturning of gay marriage could spark enough outrage to match the right’s insanity about the death of Charlie Kirk. It could be what ignites the left with the same lasting fervor.
The backlash would be immediate. Sixty-seven percent of the population supports gay marriage. Gay celebrities who have been silent on Gaza or ICE would finally have to give a shit. Democrats could have success making protecting gay marriage a cornerstone of their campaigns. (It’s far more popular than abortion and less of a risk than speaking up about trans rights or Palestine.)
Politically, fortifying gay marriages would fall to the states. New England, the tri-state area, DC, Illinois, Michigan, Colorado, New Mexico, Washington, Oregon, California, Nevada and Hawaiʻi have baked in protections in state law that wouldn’t be undone by Obergefell falling. States that don’t have these protections are Alaska, Alabama, Georgia, Mississippi, Tennessee, Kentucky, North Carolina, South Carolina, Texas, Ohio, Indiana, Missouri, North Dakota, South Dakota, Nebraska, Wisconsin, Kansas, Idaho, Montana, Wyoming, Utah, Arizona, Florida, Oklahoma, Arkansas, Louisiana, and West Virginia. The GOP has been working overtime to pass all power to individual states over federal mandates, like with the federal anti-abortion ruling or legislation being presented to allow states to decide if they want to frack on formerly federally “protected” land. Overturning Obergefell is another step in a long path toward civil war.
The states that banned gay marriage before they were forced to recognize it federally could reinstate their dormant bans. This leaves what rights gay people have in chaotic flux. There’d be a flight from those states to the ones where gay marriage is legal, adding fuel to the civil war flames. Those who can afford to uproot their lives will do so; those who can’t will be left behind.
A big reason for gay couples to need access to spousal protections was borne out of the AIDS crisis, where long-time partners were barred from hospital rooms (but toxic, abusive family members were let in). They were thrown out of their houses and received no financial support once their partner passed.
With marriages annulled, spouses would lose the rights to those hospital visits, their inheritances, joint taxes, Social Security, and immigration sponsorship. Spouses wouldn’t easily be entitled to pensions, and exes wouldn’t get alimony or child support. States could narrow who is considered a legal parent and void adoptions. In Oklahoma and Tennessee, lawsuits have sought to restrict who can be legally listed as a parent on birth certificates. The sperm donor could become the default father, for example. Existing marriages and families would fall into legal purgatory, unless their state rules to protect the partnerships. Employers would face complicated questions about benefits and HR policies. What if one spouse works in a state that recognizes gay marriages, but one lives in a state that doesn’t? In places where gay marriage becomes illegal, existing marriage could be fine but new marriages would be blocked.
A possible saving grace is 2022’s Respect for Marriage Act which requires both state and federal governments to recognize marriages that were valid where they were performed. For example, gay billionaire and Republican donor Peter Thiel was married in Vienna, Austria, so regardless of what happens in the US, his marriage is probably fine. Rich people, even gay ones, escape the fallout of most oppressive legislation.
Gay marriage is an unlikely and unpopular issue for Republicans to go after directly. There are out gay conservatives like Thiel or Ken Mehlman. Billionaire Paul Singer’s son Andrew is gay. If these people kowtow to eliminating gay marriages as official marriages because of the Bible (and we go back to civil unions), they would still balk the loss of their or their loved one’s rights. Even the most conservative justices may not want to mess with that. They also may not spark another culture-war firestorm so soon after Dobbs and while they believe they have the moral upperhand post-Charlie Kirk.
The Supreme Court has a very cohesive 6-3 conservative majority, but justices John Roberts, Brett Kavanaugh and Amy Coney Barrett have not said anything specific about gay marriage. It is a political loser if said directly, but “religious liberty” carve outs for businesses and adoption agencies push us out of public life and away from resources. This could avoid the explosive backlash an outright ban would trigger.
If losing gay marriage sparks liberal action, and if Democrats ever gain power again and grow spines, bringing back or passing stronger federal gay marriage protections (like amending the Constitution or expanding RMA) would hopefully be a first order of business. They should have done it for Roe under Biden. For now, the Respect for Marriage Act provides a buffer.
If gay marriage stays legal, that doesn’t mean anti-discrimination laws aren’t being chipped away. There’s more room for people like Kim Davis, a woman whose hair probably smells like black mold, to file discrimination claims under infringement of their religious liberty. Does providing a service to a gay wedding, like catering or venue rental, violate a business owner’s religious freedom? Christian nationalism is gaining power under the eye of the Heritage Foundation, the organization responsible for Project 2025.
Let’s not be fear mongers. How likely is any of this? Not very.
We should prepare anyway. Create a will and trust so your spouse or partner can inherit any property regardless of if you are legally married. Go to a legal website like LegalZoom and make a “living will” too, on the cheap. There’s a lot of leeway in what a will looks like — it mainly needs you to be of documented sound mind and it needs your signature and those of two or three witnesses. A notary would be good, but it’s not necessary. Create an advance directive in case you are incapacitated. Make sure your spouse is listed as your medical and financial power of attorney and healthcare proxy because, if not, it defaults to your parents. That could be disastrous.
Even if both names are on the birth certificate, legal adoption provides an extra protective layer. In some states, you can get a judicial declaration of parentage as a court order, which is harder for opponents to challenge.
Check on your employee benefits. Where does your 401K or pension go if you pass? Can you keep someone on your health insurance if your marriage is now invalid? Do you have life insurance where you can leave money to each other? There are options like a joint tenancy with right of survivorship form to ensure property passes automatically. If your state seems like it would ban gay marriage, it might be a good idea to get married again in a safe state to create added protection.
I know. It’s a lot. It sucks to think about. But even if gay marriage doesn’t lose federal protection, it’s never a bad idea to create legal safety nets for your love that don’t rely on a Republican majority Supreme Court to validate.
