The War on Obergefell
Now it’s time to take the forthcoming attack on gay marriage VERY seriously
Death, taxes, and Kim Davis being the worst person imaginable: these are the only things truly certain in life. Maybe you’ve heard the news: a former Kentucky county clerk who became a useful idiot for anti-woman “advocates” ten years ago has returned to try and challenge the ruling of Obergefell v. Hedges, the Supreme Court ruling that grants marriage rights to same sex couples.
Devin Dwyer at ABC has the scoop:
In a petition for writ of certiorari filed last month, Davis argues First Amendment protection for free exercise of religion immunizes her from personal liability for the denial of marriage licenses. More fundamentally, she claims the high court's decision in Obergefell v Hodges -- extending marriage rights for same-sex couples under the 14th Amendment's due process protections -- was "egregiously wrong."
"The mistake must be corrected," wrote Davis' attorney Mathew Staver in the petition. He calls Justice Anthony Kennedy's majority opinion in Obergefell "legal fiction."
The petition appears to mark the first time since 2015 that the court has been formally asked to overturn the landmark marriage decision. Davis is seen as one of the only Americans currently with legal standing to bring a challenge to the precedent.
"If there ever was a case of exceptional importance," Staver wrote, "the first individual in the Republic's history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it."
Lower courts have dismissed Davis' claims and most legal experts consider her bid a long shot. A federal appeals court panel concluded earlier this year that the former clerk "cannot raise the First Amendment as a defense because she is being held liable for state action, which the First Amendment does not protect."”
Dwyer’s assertions that legal experts consider this a long shot might be true, but that doesn’t mean this isn’t something we need to sound the alarms on. Even if Kim Davis is one of the most hypocritical bad-faith crazies around in the world of conservative politics. In fact, I would argue that the Trump administration’s degradation of the legal system, as well as the Supreme Court’s comically partisan leanings, are exactly why we need to act now in any way we can to protect ourselves. Because this is all part of the plan.
THE REASONS WHY OBERGEFELL COULD BE OVERTURNED
As mentioned in Dwyer’s ABC piece, there are a number of bad faith actors working overtime right now to reverse the Obergefell ruling. Nine or so states have tried introducing legislation this year to block new marriage licenses for LGBTQ people, or have passed resolutions asking the Supreme Court to reverse Obergefell.
On top of that, as we’ve mentioned before, the Southern Baptist Convention voted to make the “overturning of laws and court rulings, including Obergefell v. Hodges, that defy God's design for marriage and family" one of their biggest priorities. This, coupled with the fact that Chief Justice John Roberts was one of the dissenting voices against Obergefell in 2015, would be reason enough to be concerned, if not for what Project 2025 has to say about gay marriage.
You might be surprised to learn this, but unlike many of the other hot-button issues relating to race, the trans identity, people with disabilities, or immigrants, there is NO explicit language relating to Obergefell within Project 2025. If you open the document now, and do a quick search for “gay,” “LGBT,” “same-sex,” “homosexual,” or any variation of those terms, you’ll find that the vast majority of Project 2025’s actionable items have to do with erasing trans people - something we’ve reported on before.
That doesn’t mean there’s nothing concerning within the text.
For instance, one of the sections for the Department of Health and Services outlines one of their goals as “promoting stable and flourishing married families.” It defines families composed “of a married mother, father, and their children are the foundation of a well-ordered nation and healthy society,” and claims that Biden focused far too much on “LGBTQ+ equity,” and that policies need to be repealed and replaced by those that “support the formation of stable, married, nuclear families.”
This is followed by a section starting on page 479 that discusses Healthy Marriage and Relationship Programs, or HMRE programs for short. Most of the section is rather benign (for Project 2025) and focuses on setting aside funding to provide state-level resources to teach high school students what a “healthy” marriage should be. Like I said - benign for Project 2025. But there is one sections that grants us a little cause for concern:
“Protect faith-based grant recipients from religious liberty violations and maintain a biblically based, social science–reinforced definition of marriage and family. Social science reports that assess the objective outcomes for children raised in homes aside from a heterosexual, intact marriage are clear: All other family forms involve higher levels of instability (the average length of same-sex marriages is half that of heterosexual marriages); financial stress or poverty; and poor behavioral, psychological, or educational outcomes. For the sake of child well-being, programs should affirm that children require and deserve both the love and nurturing of a mother and the play and protection of a father. Despite recent congressional bills like the Respect for Marriage Act that redefine marriage to be the union between any two individuals, HMRE program grants should be available to faithbased recipients who affirm that marriage is between not just any two adults, but one man and one unrelated woman.”
Now, to be clear, there aren’t actually any plans pushed here explicitly to abolish Obergefell… but these words were written by a man named Roger Severino. Who is Roger Severino? In short, he’s the former director of the Office of Civil Rights for the first Trump term, a senior fellow for conservative think tank Ethics and Public Policy Center, and is what the Human Rights Campaign refers to as a “Radical Anti-LGBTQ Activist.”
According to the GLAAD Accountability Project, Severino used his time in Trump 1.0 to scrap protections against discrimination for trans patients by doctors, hospitals, and insurance companies. He also once said that viewpoints opposed to LGBTQ people are, “actually decent and honorable beliefs based not on any sort of hatred but, in fact, out of love. It’s a vision of human flourishing, people who believe in marriage and believe in a biblical view of human sexuality, it’s out of love and because you believe this is the proper vision for human flourishing that leads to happiness and leads to societal success, and there’s a lot of social science evidence backing those statements up.”
But what makes his association with the Heritage Foundation, creators of Project 2025 and the people Trump seems to listen to the most, all the more concerning are his thoughts on gay marriage: “Same-sex marriage was merely the start, not end, of the left’s LGBT agenda. The radical left is using government power to coerce everyone, including children, into pledging allegiance to a radical new gender ideology over and above their right to privacy, safety, and religious freedom.”
Roger Severino, even though he was hilariously denied a position in the administration this time for being TOO extreme on abortion, still believes in the same mission he did before Obergefell passed. He has gone on record saying he doesn’t believe Obergefell will ever be overturned… how far do you think he’ll go to support an overturn this time if he has the ear of the administration in any way?
What makes all of this frustrating is that should Obergefell be overturned, Michele Theil at Pink News reports that the issue returns then… to the states. In which case, much like what happened following the overturning of Roe v Wade, states can enact something called “zombie laws,” which are archaic laws that have never been repealed but have been either “invalidated or superseded by other laws or higher-court decisions.”
One of the laws that could be under attack is the Supreme Court decision Lawrence v. Texas, which “ended the criminal punishment of private, consensual non-procreative adult sexual activities: i.e. anti-sodomy laws.” The issue with Lawrence v. Texas also being under attack is that 12 states have statutes criminalizing consensual sodomy, according to Pink News: Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, and Texas. Since Lawrence v. Texas is in effect, those statutes are not enforceable.
I wanna be extra clear here: Lawrence v. Texas makes it so laws criminalizing consensual sodomy are UNCONSTITUTIONAL.
The slippery slope here is that if Obergefell goes, if Lawrence goes, if these laws go, the anti-sodomy statutes are back, right? As a reminder, sodomy isn’t just defined as anal sex - it’s “anal or oral copulation with another person - especially : anal or oral copulation with a member of the same sex,” according to Merriam-Webster.
Suddenly, it’s not just gay marriage that’s illegal… it’s the very act of being gay.
It’s time for us to be on alert that something like this COULD happen, though there are a few silver linings and possible protections we should keep in mind. For starters, Dwyer at ABC reports that even though Kim Davis’ petition is going to be heard during a private conference this fall, it’s not for sure that they’ll even agree to hear the case. ABC News legal analyst Sarah Isgur told Dwyer that "Justices Brett Kavanaugh and Amy Coney Barrett seem wildly uninterested. Maybe Justice Neil Gorsuch, too," and that “there is no world in which the court takes the case as a straight gay marriage case. It would have to come up as a lower court holding that Obergefell binds judges to accept some other kind of non-traditional marital arrangement."
IF, and that’s a big if, Isgur is correct, then that leaves the decision at 6-3 against overturning Obergefell.
Which leads me to something I’ve spoken about at great length on Substack and YouTube before: the nine documents essential for every LGBTQ+ estate plan.
A lot of this is courtesy of Angela Giampolo, aka gaylawyer, who has been a massive help in getting this sort of information out to the world. The documents she has outlined are some of the most important documents any LGBTQ+ person or couple needs to be protected in the United States:
Revocable Living Trust
Last Will & Testament
Healthcare Power of Attorney
Durable Power of Attorney
Living Will
two forms of Hospital Visitation Authorization Form (“one for your partner and one for your Chosen Family”)
Agent for Disposition of Remains
Pet Care Directive
Tangible Personal Property Memorandum
WHEN THE MACHINE BREAKS DOWN, WE BREAK DOWN.
This Substack isn't just about Nancy Pelosi, it's also about saving gay marriage.
The truth is, if you’re on the wall about getting married as a gay couple in the United States right now, now’s your chance. It’s not entirely clear the Supreme Court will overturn Obergefell, but the writing is on the walls right now that it’s time for us to protect ourselves as much as we humanly can.