Gay Marriage Is Here to Stay, Even With a Conservative Court - WSJ op-ed

[question everything]

(Too legalese for me, but others here may be able to follow)

By Walter Olson who is senior fellow at the Cato Institute.

No matter who replaces Justice Anthony Kennedy, gay marriage isn’t going anywhere: The court won’t overturn Justice Kennedy’s 5-4 decision in Obergefell v. Hodges (2015). Don’t believe me? Let’s count eight reasons:

1. Most closely fought landmark decisions don’t get overturned when the losing faction becomes a majority. When they do, there’s usually foreshadowing, in which justices in the minority have conspicuously challenged the ruling’s legitimacy. At least two post-Obergefell decisions have now gone by in which conservative justices have refrained from such challenges: Pavan v. Smith (2017) and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).

2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.

Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more.

(snip)

3. The American public would not view all this turmoil as somehow worth enduring in order to get rid of a widely detested decision. Since the Obergefell ruling, as per Pew Research last year, the longstanding trend toward acceptance of same-sex marriage has continued, with support rising from 55% in 2015 to 62% in 2017. Just 32% of Americans opposed gay marriage as of last year. Opposition to legal recognition of same-sex marriage commands less than a majority even among those who vote or lean Republican.

4. Nor would the chaos be likely to please Mr. Trump, who went on “60 Minutes” days after his election and said of the gay-marriage legal cases: “They’ve been settled, and I’m fine with that.”

5. Since Obergefell came down, cooler heads on the social-conservative side have urged pivoting away from vain attempts to block the transformation in public opinion, in favor of finding an accommodation for religious minorities who object—the theme of Masterpiece Cakeshop and several pending cases.

(snip)

8. In Masterpiece Cakeshop last month, every conservative justice save Clarence Thomas signed onto Justice Kennedy’s language as follows: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”

More..

https://www.wsj.com/articles/gay-marriage-is-here-to-stay-even-with-a-conservative-court-1531074136 (paid subscription)

[RandySF]

1. Don't count on it.

[Behind the Aegis]

2. I don't believe it.

Sorry, this is a group (The Grip of Putin (GOP)) which routinely runs an anti-gay platform and "state's rights". Though the tide was turning in the reddest of states, my state Oklahoma approved it before it became law of the land, it doesn't mean there won't be attempts, possibly successful to re-write or weaken marriage equality. Frankly, I think there are many who, while claiming to support marriage equality, wouldn't give two shits if it were damaged or destroyed.

The 2016 GOP Platform:

On Marriage Equality:

Republican officials continue to reject the Supreme Court’s decision in Obergefell v. Hodges that gave same-sex couples the nationwide right to marry. The platform asserts that laws and government regulations should only “recognize marriage as the union of one man and one woman,” and explicitly calls for “judicial reconsideration or a Constitutional amendment returning control over marriage to states.”

The Trump/Pence ticket: Donald Trump opposes marriage equality -- pledging to fill the Supreme Court vacancy with a justice who would overturn equality. Pence is also a longtime-foe and urged amending Indiana’s Constitution to outlaw marriage equality after section three of DOMA, which restricted the federal government from recognizing the legal marriages of same-sex couples, was ruled unconstitutional.

On Family and Society:

The platform “supports adoption organizations that refuse to serve gay couples,” and suggests that “children raised in households without a mother and father are more prone to use drugs, commit crime and get pregnant outside of marriage.” The platform also cites research that has been debunked and discredited, asserting that “children raised in a ‘traditional two-parent household’ are likelier to have healthier outcomes.”

The Trump/Pence ticket: As governor, Mike Pence’s “right to discriminate” bill could have allowed businesses to discriminate and deny service to LGBTQ people because of who they are or whom they love.

https://www.hrc.org/blog/republican-national-convention-2016-platform-takes-harsh-stance-against-lgb

So now, I don't believe, for a moment, what the WSJ is peddling.

[AlexSFCA]

3. wsj is a joke; obergefell can be overturned

and the issue comes back to the states. And it doesnt matter what trump said as it will be SC that do it. My only hope is that Kennedy didn’t handpick a replacement to overturn his landmark opinions. We will likely see more first amendment discriminations going forward, people refusing to follow the law due to religious objections.

[SemiHalfling]

4. Unfortunately this is a case where I'll need to see it to believe it. Nt.

[gay texan]

5. Bullshit

You can bet your ass they are coming after this

[Behind the Aegis]

6. You were saying?

(Not "you", the OP, just a generalized statement.)

US House Committee Passes Anti-Gay Amendment Allowing Taxpayer-Funded Adoption Agencies to Discriminate

The U.S. House of Representatives' Appropriations Committee Wednesday afternoon passed an amendment that would allow adoption agencies that receive taxpayer funds to refuse to allow LGBT people to adopt, by citing their religious objections to same-sex marriage or LGBT people. The legislation is so broad it allows adoption agencies to discriminate against anyone, merely by claiming a religious or morally-based objection.