If you’ve watched the news or scrolled the internet in the last week, you know that the legality of same-sex marriage is, once again, a hot political topic. After 2015’s Obergefell v. Hodges win, many in the LGBTQ+ community never thought we might never fear seeing “the Supreme Court” and “gay marriage” together in a headline again. However, the current administration and the conservative-leaning Supreme Court have reignited anxiety over the safety of marriage equality. Before you panic, here’s everything you need to know.
The Supreme Court will decide whether to hear a case that could impact same-sex marriage.
On November 7, the justices will hold a private meeting to decide if they will hear the case of Kim Davis. If that name sounds familiar, it’s because she’s the Kentucky county clerk who requested to ‘opt out’ of issuing marriage licenses to same-sex couples way back in 2015. Directly after marriage equality became the law of the land, Davis claimed her religious beliefs should allow her to abstain from issuing marriage licenses to same-sex couples. Rather than issue licenses to LGBTQ+ folks, Davis denied all couples from obtaining marriage licenses.
The ACLU and the ACLU of Kentucky sued on behalf of four couples: two of which were same-sex, and two of which were different-sex couples. Since 2015, the courts have repeatedly ruled against Davis, with her even serving time for contempt of court. Now Davis wants the Supreme Court to decide if the First Amendment—and its protection of religious freedom—shields her from liability in refusing to issue marriage licenses to same-sex couples.
Technically, the hearing is an attempt to grant Davis immunity from liability. However, her counsel also suggested that the Court revisit the the Obergefell v. Hodges decision, claiming it infringes on religious freedom.
We likely won’t know the outcome of the justices’ meeting on November 7, as it could take days or even weeks for the Court to decide if they will hear the case.
Texas Supreme Court ruled that judges have a right to refuse same-sex marriages.
On October 24, the Texas Supreme Court decided that “sincerely held religious beliefs” are a justified reason for state judges to refuse to marry same-sex couples. The change to the Judicial Conduct Code, which took effect immediately, holds that judges will not be sanctioned for refusing to perform these marriages and that their choice will not violate the state’s rules on judicial impartiality.
All nine justices of the Court (who just so happen to be Republican) signed the amendment. It’s a far cry from 2019, when Justice of the Peace Dianne Hensley received a public warning from the Texas Commission on Judicial Conduct for refusing to marry same-sex couples. Though the sanction has since been withdrawn, Hensley did file a lawsuit in response to the warning, claiming that punishing her for acting in accordance with her faith was a violation of state law.
Afraid of facing similar sanctions, Texas county justice Brian Umphress brought a federal-court lawsuit against the Texas State Commission on Judicial Conduct earlier this year. Umphress v. Hall faced a dismissal, then an appeal. In an attempt to clarify once and for all what the Texas law on sanction against judges actually means, the Fifth Circuit asked the Texas Supreme Court, “Does Canon 4A(1) of the Texas Code of Judicial Conduct prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?”
Friday’s decision is an answer to that question. The Texas Code of Judicial Conduct now reads, “It is not a violation of these canons for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.” So while same-sex marriage remains legal in Texas, it may be much harder for couples to find a judge willing to officiate their ceremony.
What does it all mean?
Unfortunately, we don’t know what the future holds. Same-sex marriage is still the law of the land, but there is a chance that could change in the coming years. If that were to happen, we’d have ample warning, so there’s no need to panic now.
However, it’s worthwhile for couples—especially those with children—to take action now towards cementing the rights and privileges accessed through marriage in the event that our marriages are no longer recognized.
Resources to get you started
- Family Equality has a resource for same-sex parents looking to protect parentage of their children
- The National Center for LGBTQ Rights offers a PDF outlining key legal steps LGBTQ+ spouses can take to ensure their families remain protected