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Last month, German legislators voted to approve marriage equality. But on the same day of that massive victory for equal rights, Texas took steps that, with the help of Donald Trump, could lead to the overturning of marriage across the United States.
The threat to marriage involves an elaborate chess game of court cases and judicial appointments. Here’s how it would work:
Equality for All … for Now
Let’s start with a refresher about how, last month, the U.S. Supreme Court ruled that states have to extend full marriage rights to same-sex couples. That was in a case about birth certificates; Arkansas was refusing to recognize same-sex parents on birth certificates if they were married. The state’s claim was that while they may have to let gays marry, they don’t have to extend to them any marriage rights.
The Supreme Court said, in essence, “no, read the Constitution — you have to treat all people equally under the law, including queer people.” That’s derived in part from the court’s 2015 ruling on marriage, which found that the rights and responsibilities of marriage are covered under the Due Process and Equal Protection clauses of the Constitution.
Texas is Desperate to Discriminate
So you might think that would settle the issue, but no. There’s a case in Texas that’s very similar to the Arkansas case, using basically the same argument. This one’s about health benefits rather than birth certificates: Anti-gay activists are claiming that even if a same-sex couple is married, there’s no law that says they have to get the same health benefits as straight couples.
Of course, as the Supreme Court just pointed out, there is a law. It’s called the Constitution, which requires that the government treat all people equally. Nevertheless, after the birth certificate ruling last week, Texas doubled down, saying basically, “OK, so the Supreme Court says gay couples need to be treated equally on birth certificates. But they didn’t say anything about health insurance!”
Transforming the Supreme Court
Why is Texas doubling down on an argument that was just rejected by the Supreme Court? One possible reason: because by the time their case reaches its conclusion, we may have a very different Supreme Court.
Marriage was won in 2015 by a margin of one vote. If the makeup of the court changes, that victory would be in serious jeopardy. As it is, Trump’s appointee Neil Gorsuch issued a strong dissent in the birth certificate case, coming down hard in opposing equality for LGBT couples. His ruling even contained factual errors to justify unequal treatment.
Over the last decade, the Supreme Court has considered facts and evidence while rejecting bigotry when hearing LGBTQ-related cases. But Trump’s first appointee has shown himself to be an anti-gay ideologue, putting misinformation right into his rulings. And if the court gets one or two more justices like that, they could use the Texas case to establish a new precedent on marriage, saying it’s OK for states to have different tiers. Full marriage for straight couples, partial marriage for everyone else.
Fortunately, the lawyers who won marriage in 2015 are taking action to defend that victory. Their organization is called GLAD, and they’ve been fighting for equal rights for decades. If anyone can protect marriage equality, it’s the professional queer advocates who’ve been at it for longer than many of us have been alive — but even they may not be up to the task if the Supreme Court falls under the control of anti-gay ideologues.