Hints that Obergefell could be at risk

[BootmanLA]

I (and others) have speculated here that the current Supreme Court is hostile to the same-sex marriage right recognized in the Obergefell case, and more specifically, I've pointed out that the Court doesn't have to outright overturn Obergefell to render much of it meaningless. We got a hint of that this week in an unrelated case, Department of State v. Munoz.

In Munoz, the Court held that while Munoz (a female American citizen) has a right to be married to her spouse, an El Salvadoran named Luis Ascensio-Cordero, that does not give her the right to live with him in the United States if the State Department refuses to give him a visa to enter the country. Moreover, the State Department wouldn't even provide a reason to the couple as to why he was ineligible for a visa. And of course, if you don't know WHY the visa was declined, it's a lot harder to challenge the refusal in court; in fact, under ordinary circumstances, the decisions of an executive official to grant or deny a visa is final and unreviewable in court.

In essence, the Court applied a precedent known as Gluckberg, which protects citizens from infringements on their fundamental liberties when that liberty is not explicitly spelled out (as, for example, the right to freedom of speech is). Under the Gluckberg test, the person must assert a specific fundamental liberty interest, and then demonstrate that said interest is "deeply rooted in this nation's history." Here, the Court said that the liberty interest being asserted was not marriage per se, but "the right of a citizen to have her non-citizen spouse enter and remain in the United States" - and that, the Court held, was not a liberty deeply rooted in history.

So: let's say a president is elected who's hostile to gay rights, and appoints a Secretary of State who, in turn, directs his visa-granting officials to reject applicants who are same-sex spouses of citizens. That decision is unreviewable unless a fundamental liberty interest is involved, and this Court has just told us that there's no fundamental liberty interest involved in a non-citizen spouse being admitted to live in the US because it's not deeply rooted in history. Certainly, in that case, same-sex marriage (which has only been a thing for less than a dozen years, under the federal government) is not deeply rooted in our history either.

Then - imagine all the other ways in which marriage ordinarily grants certain rights and privileges and liberties - and imagine for how many of them this Court could say "Well, extending THOSE to same-sex couples isn't rooted in our history, even if we have to let them marry; same-sex couples aren't entitled to X or Y or Z" and see how quickly same-sex marriage is gutted even without repealing it, much as how Roe was hollowed out long before it was actually overturned.

[hntnhole]

Thanks for that most interesting post, BootmanLA,

All I can say is, there are more and more reasons (almost daily) to vote "straight-ticket" Dem, particularly local/State-wide/Federal offices.  

I did have more to say, but considered against it. 

[BootmanLA]

I'd like to add: just because I think same-sex marriage rights could easily be hollowed out doesn't mean that outright overturning that decision isn't a possibility.

Remember that the central holding of Roe - that the right to privacy including the right to abortion (at least some of the time) - was explicitly upheld in the Casey decision in 1992. Then, after twice finding this right existed, the political shift of the court meant precedent could be tossed aside simply because one side won the right election.

The Obergefell decision included current justices Alito, Thomas, and Roberts voting against it. On the other side, Kennedy (who wrote Obergefell) was replaced by Kavanaugh, who is no friend of LGBT rights. Ginsburg was replaced by Barrett (likewise). And Scalia, who also voted against it, was replaced by Gorsuch, who likewise is no LGBT supporter. There are already five votes to end same-sex marriage rights on the Court, even if we don't include Roberts (who might vote against overturning), if the right case comes along. And as we've seen with the hard-line conservative movement, they're not above manufacturing a case that puts the issue square and central back in front of the Court to give them that opportunity.

My point, though, is that we don't even have to reach that point to have our civil rights eroded drastically. Just as Roe had been eviscerated in many states with 6-week limits on seeking an abortion and the like, the right to marry could easily be undercut to the point that in some places it's almost meaningless. And once you get to that point, ending it completely becomes a lot easier, politically.

And bear in mind: Thomas is 75, Alito is 73. If a Republican (ie Trump) is elected this November, both are likely to retire during his term and the nominees to replace them will be 30+ years younger. The opportunity to move the Court to the left at all will be gone for another 20 or so years, until Kavanaugh or Gorsuch, both in their mid-50's, reaches retirement age. And if something happened to Sotomayor (who's 69) while we have a Republican president, make that 30 or more years before the Court returns to sanity.

[NEDenver]

We'll be lucky if they don't overturn Lawrence.  The opportunity to turn a reliable Democratic voting bloc into non-voting felons would be irresistible.

[hntnhole]

Well said, and thanks, BootmanLA.  

Occasionally, a reason to be guiltlessly selfish arises:  

21 hours ago, BootmanLA said:

I think same-sex marriage rights could easily be hollowed

Hollowing out Obergefell would be thiiiiiis close to actually reversing it if the R's retain their majority in the House, and gain seats in the Senate.  More, given O.J.'s latest verbiage about 'States Rights" - i.e. allowing the individual States to decide what should be (and, in the case of Roe, were) citizen's rights, that approach would seem to be the more obvious choice for the Magaroids.  

How the pseudo "Christians" decided that the freedom of (or from) Organized Religion should also be brought to heel is beyond me.  That's yet one more on the Court's chopping block.  They claim that the US is a "Christian" nation, on an utterly false basis, and if these people aren't tossed out on their greasy asses in November, the US, as we know it, could be finished. 

I can only imagine what would happen when these misguided folks start in on us.