Today, we published an editorial making the case for Republicans to reject the same-sex marriage bill. Gay marriage is one of those issues on which I happen to disagree with most of my colleagues on the underlying issue. That is, while I agree that Obergefell was bad constitutional law, on the substance of the issue, I have long supported allowing same-sex couples to get married. Had it ever come up for a vote where I lived prior to Obergefell, I would have voted in favor of legalizing same-sex marriage, and nothing that has happened in the post-Obergefell world has caused me to change my mind. That having been said, one of the reactions to the editorial that I find odd is the idea that there is some sort of inherent contradiction in being opposed to same-sex marriage on the one hand, and dismissing concerns that Obergefell would ever be overturned.
I support plans to transition Social Security to a system of personal accounts and would not shy away from defending that unpopular view. But I do not think Republicans are about to privatize Social Security. There is no contradiction here. In one case I am stating my ideological preferences, and in the other case I am simply stating reality.
Even a judge who believes that Obergefell was wrongly decided at the time could still oppose overturning it. That’s because overturning it would raise issues that striking down Roe did not. As the Supreme Court acknowledged in decisions in both Casey and Dobbs, “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” In contrast, the reliance interests arguments are much stronger when it comes to Obergefell given that same-sex couples have already been making lifetime commitments for years based on the outcome of the decision. Unraveling the ruling is simply not tenable.
The reality is that there is currently one vote on the Supreme Court to revisit Obergefell, which we know because Justice Clarence Thomas was the only one on the Court who signed on to the idea of revisiting it. Simply put, there isn’t any tension between opposing Obergefell on the one hand, and acknowledging the obvious political and legal state of play on the other.