With Roe Falling, LGBTQ Families Fear They'll Be the Supreme Court's Next Target
When Obergefell v. Hodges was decided in the Supreme Court — making same-sex marriage the law of the land — Leanne Mertzman woke up to a text message from her best friend in law school: “Isn’t it cool that your daughter will never know a world where you’re not married?”
It was June of 2015 and Leanne’s wife Allison was 20 weeks pregnant with their first child. That October, Leanne cut her daughter’s umbilical cord, and two years later, she did the same for their second. At the time, many non-birthing parents in LGBTQ couples took the step of formally adopting their children, a process called “second parent adoption” that aimed to add an extra layer of legal protection against anyone who might try to challenge the legitimacy of their family.
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But Leanne’s name was on both girls’ birth certificates, and in 2015, with same-sex marriage settled by the Supreme Court, Leanne thought, “I feel safe.”
She doesn’t feel safe anymore.
Last month the Supreme Court’s draft Dobbs v. Jackson Women’s Health Organization decision was leaked, announcing the court’s intention to overturn Roe v. Wade and undermining the “right to privacy” that made the foundation for most federal LGBTQ protections. “It was terrifying,” Leanne says. “And the fact that it came from the nation’s highest court — the one I went to law school to study and to respect — was such a shock.”
Within weeks of the leak, Leanne and Allison went to the Children’s Court in Downtown Los Angeles to start the process of second parent adoption. The word they keep coming back to is “humiliating”: asking the government to affirm what they already know with every fiber of their being — that their children are their own. “Most dads cut their kids’ umbilical cords, and then never have to think about it again,” says Leanne. “I have to explain to my kid why we were going to the courthouse so that I could claim my rights as her parent.”
For the last seven years, Obergefell has served as a foothold in the legal code as LGBTQ Americans built new families and planned for the future. But if the question is returned to the states, many families are at risk: As of this year, 35 states still have statutes or constitutional amendments on the books that ban same-sex marriage.
So with Obergefell‘s future in question, queer families all over the country have shifted into a defensive stance. Eric Patton, a wedding officiant in Tennessee, has officiated five queer weddings since the leak — more than double what he’d usually do in a month, and he got a “rush call” to officiate one the day we spoke. (And if there was any question that the weddings were inspired by the Dobbs draft, he says, “couples are asking me to include Justice Kennedy’s majority opinion from the Obergefell decision in their ceremonies.”) Meg and Arabella Miller, both in their early twenties in Chattanooga, scrapped an already-planned wedding in June 2023 to elope this month (“We had everything: the dresses, the venue, the officiant,” Meg says, “but I was just so anxious.”) At least two of their friends are planning to do the same.
To many LGBTQ advocates and analysts, the leaked draft means that a federal challenge to same-sex marriage is now inevitable. “Alito basically left a detailed recipe to overturn Obergefell,” says Brynn Tannehill, an LGBTQ activist and author of American Fascism. Groups on the Christian right — backed by a constellation of fundamentalist billionaires — have thrown their considerable might behind the effort to turn back the clock on LGBTQ rights.
But advocates are quick to point out that efforts to overturn Obergefell are, as the ACLU put it, just “one aspect of a war that is already underway.”
In 2021 alone, 250 anti-LGBTQ laws were introduced in state legislatures, the most cunning of which are the spate of religious freedom laws that currently allow for sweeping exceptions to LGBTQ rights in 15 states, essentially allowing people to opt out of LGBTQ equaltiy. As of this year, 12 states allow child welfare organizations to refuse to place children with LGBTQ couples; six states allow doctors to turn away same-sex couples or their kids; And in Mississippi and North Carolina, clerks are allowed to decline to marry couples if they simply disapprove of their marriage. “The reality that LGBTQ Americans live with is that people have never stopped trying to take our rights away from us,” says Jasmine Beach-Ferrara, the executive director of the Campaign for Southern Equality.
With Obergefell now in the crosshairs of the Christian right, advocates are asking allies to show up with the same force that they did for marriage equality in 2015. “Progress is fragile,” says Ricardo Martinez, the head of Texas Equality. “You can’t go home when you achieve something—you have to help protect it and sustain it. After the fight for marriage equality, a lot of us went home. And we need them again.”
At first glance, U.S. anti-LGBTQ efforts can seem decentralized — individual actors in state houses all across the country — and it can create the false impression for queer families that homophobic and transphobic beliefs are widely held and evenly distributed in the population. But these attacks are the product of a well-funded, centralized effort to turn the ideology of a bigoted minority into public policy, and their origin is not difficult to track. “There’s a known universe of Christian right organizations that are funding this movement,” says Heron Greenesmith, a political analyst who tracks anti-LGBTQ activity. “And they’re shouting it from the rooftops.”
That known universe orbits around three organizations: the Alliance Defending Freedom, the Christian right’s answer to the ACLU that’s designated by the Southern Poverty Law Center as a hate group; the Heritage Foundation, perhaps the largest and most influential conservative think tank in the world; and the Family Policy Alliance, a clearing house for local Christian conservative policy groups. Together, they make a Christian conservative coalition called the Promise to America’s Children, and with the backing of billionaire families like the DeVos’s and the Wilks brothers, they bring in a collective $200 million in tax-free donations every year.
That buying power is what allows these organizations to continually influence lawmakers with an ideology that is badly out of step with most voters. Polling has consistently showed growing support for LGBTQ issues on both sies of the aisle — last year, support for same-sex marriage reached 70 percent. But $200 million can turn an election on its head, and polling shows that only a quarter of GOP voters consider it a “major problem” if a politician makes homophobic remarks, so for many candidates, adopting anti-LGBTQ rhetoric can be the issue that helps them win an election.
That rhetoric in the anti-LGBTQ movement is explicit, defining marriage, exclusively, as “the union between a man and a woman.” But their strategy since 2015 has never been singularly focused on codifying that definition. Instead, much like with Roe, they’ve worked to chip away at the progress that’s been made. And with seemingly limitless resources, Greenesmith says, these groups have the money and flexibility to “try a bunch of stuff and see what works.” In 2021, less than 10 percent of the 250 anti-LGBTQ bills became law, but it was still the worst legislative year for LGBTQ issues in American history.
The Christian right’s most effective campaign, Greenesmith says, might be the push for religious exemptions — laws that typically allow business or individuals to disregard anti-discrimination laws if they violate their religious, or even simply moral, convictions. Through those laws alone, Greenesmith says, “marriage equality is being eroded already.” Mississippi is the most successful case the Christian right has had so far. In the state, LGBTQ people can be turned away by child welfare services, a government clerk can deny them a marriage license, and a doctor can choose not to treat them or their children. When the laws were challenged, a district court said that it was patently illegal — that it was a law based on bias — but the Circuit Court ultimately preserved the law.
Greenesmith compares it to the first Supreme Court case that damaged the strength of Roe v. Wade: when in the Planned Parenthood v. Casey decision, the Supreme Court decided that some government interference in abortion care was permissible. “These laws — the ones that have been challenged and succeeded — say that it’s permissible, at some level, to deny people services because you don’t like them.”
And that’s only one branch of the anti-LGBTQ movement’s efforts. Their legislative campaigns include “Don’t Say Gay” bills, trans healthcare and student sports bans, and they provide draft legislation to any state or local legislator that asks for it. In the Supreme Court, they’ve argued virtually every anti-LGBTQ case that’s been heard, including Fulton v. City of Philadelphia, which decided that federally-funded adoption agencies could discriminate against same-sex families.
Their “try a bunch of stuff and see what works” approach has had a dual effect, advocates say: made a threat to Obergefell virtually inevitable, while making it nearly impossible to cut through the noise for the general public. And so when I ask advocates — in light of the queer families’ anxiety about Obergefell — how they’re preparing, they all say some iteration of: “The house was already on fire. This just adds to it.”
The attack on Obergefell is coming, most advocates believe, but they don’t know who will lead the attack or what form it will take.
Advocates are keeping an eye on high-profile conservative state-level officials who’ve already gone after LGBTQ rights. Texas Gov. Greg Abbott this this year unilaterally declared gender-affirming care child abuse. Florida Gov. Ron DeSantis, signed the “Don’t Say Gay” bill into law this year as well. Texas Attorney General Ken Paxton has a history of working with ADF lawyers and, after Obergefell was decided, supported Texas clerks who refused to issue same-sex marriage licenses. But the reality is that there are a long list of Republicans who could bring the attack, as state GOP leaders are “showing themselves to be quite reckless [with their executive power] and are striving for headlines and political opportunism,” says Beach-Ferrara of the Campaign for Southern Equality.
The most dramatic step a governor could take would be to use an executive action to declare Obergefell illegitimate, a move that would almost certainly be overturned in court but could rally anti-LGBTQ lawmakers and activists to the cause.
That kind of unilateral action would be technically, legally “unenforceable,” says Greenesmith. The executive doesn’t actually have the authority to make those decisions, “but it will push people to act on its behalf” — in the same way that Child Protective Services still investigated the parents who provided gender-affirming care to their kids. “The fact is that states are still enforcing them,” they say. “And they’re still having an impact on public opinion and public policy.”
Barring extreme executive action, though, the next suspect is the upcoming state legislative session, says Sarah Warbelow, the legal director for the Human Rights Campaign. Bills that define marriage as between a man and a woman are introduced in state legislatures fairly regularly — like South Carolina’s 2018 attempt to redefine same-sex marriage as “parody marriage” —, but they’re generally dismissed with little consideration, even by conservative leadership.
Instead, they tried to “chip away” at the precedents. “In the wake of the Obergefell decision, and frankly, even leading up to it,” says Warbelow, “we saw a lot of states try to pass bills that would have allowed clerks to the peace to refuse to issue marriage licenses to same sex couples if it violated their conscience. We saw a coordinated litigation effort to try to allow individuals who were sort of in the wedding service industry to refuse to serve same sex couples, even if it violated state or local non discrimination laws. That has been the approach that we’ve seen thus far, rather than any serious attempt to overturn these court decisions all together.”
But Justice Aliso and Thomas’s “flagrant invitation” to reconsider Obergefell, Warbelow says, “will absolutely gin up pressure on state legislatures to act to try to challenge these precedents.” So she’s watching the watching the next legislative session closely, to see if the winds change: “Are they going to continue to double down on their attacks on trans people,” says Warbelow, “Or are they all of a sudden going to be enticed by the idea that the could challenge Obergefell?
Ultimately, it’s that question — whether or not the legal decision that protects their family is about to be reversed — that has motivated queer families to act since the decision leaked. “They’re things to do to feel protected,” says Meg from Chattanooga. She hopes that it’ll never be necessary, she says, but “even if it doesn’t matter later, we’re just doing what we can to feel safe now.”
Rendering those moves unnecessary is the goal, says Martinez of Texas Equality. For all of the doomsday preparations, “I’m not aiming for the worst case scenario. I’m aiming to win.” But to do that, he says, we have to show up for LGBTQ rights in the same way that we did before Obergefell was decided.
Many advocates urge onlookers to not get tunnel-visioned on the possibility of a threat on the federal level, and take action in the states now — where the anti-LGBTQ movement is already moving quickly and with force. “When we knew [the Dobbs decision] was coming out, there were all these think pieces about how the pro-choice movement failed Roe by focusing on the federal level and not focusing on the state level,” says Greenesmith. “I would hate for us to repeat that mistake.”
Greenesmith urges allies to remember that not all laws against marriage equality look like same-sex marriage bans. “It’s happening already,” they say. “I would hate for us to wait for one of these laws to be challenged [in the Supreme Court], instead of seeing that, holy shit, 12 states already permit discrimination in child welfare services, and six states already allowed doctors to decline LGBTQ people.”
And when the Christian right does level a direct challenge to Obergefell, advocates across the country say they’re prepared to defend it — especially if their allies show up. In Texas, Martinez has been working with the volunteers and donors and advocates that didn’t go home after Obergefell, a tiny sliver of the apparatus that had been built to enshrine that landmark decision. This year, the Texas legislature saw 76 anti-LGBTQ laws introduced — the worst in the history of any state. “And despite that, those dependable organizers showed up session after session after session after session, and they defeated 75.” So when it comes to an existential threat to LGBTQ families across the country, he says, “imagine what we could do if everyone showed up.”
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