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In the nearly 10 years since a very different Supreme Court than the one that sits today declared same-sex marriage a constitutional right, such unions have become, if not commonplace, at least no longer exotic in American society.
There are more than 700,000 same-sex marriages in the U.S. today; in some states, they comprise more than 1% of all marriages. The topic has been largely defanged as a political and cultural controversy, with public support for same-sex marriage now topping 70% nationally.
None of which should instill a false sense of security regarding this particular right — not in the shadow of a current Supreme Court that has shown a willingness to disregard both public opinion and its own precedent in pursuit of brazenly ideological goals.
The latest reminder of just how ominous the situation is comes from conservative Justice Samuel Alito, commenting on a case out of Missouri involving a same-sex couple. In essence, Alito reiterates that, even now, he believes same-sex marriage should not have constitutional protection.
Hold onto your wedding rings, folks.
In Finney v. Missouri Department of Corrections, a female corrections employee in a same-sex relationship sued the state over harassment she endured from a coworker who was her partner's ex-husband. The harassment, including rumor-mongering in the workplace, was focused on her status as a lesbian, making the issue of her same-sex relationship directly relevant to the case.
So her attorney, during jury selection, asked prospective jurors whether they viewed same-sex relationships as sinful and got several of them removed from consideration based on their answers.
The plaintiff won her case. The state appealed, claiming the jurors who admitted they believe same-sex relationships to be sinful were improperly removed based on protected religious beliefs.
The Supreme Court last week declined to review the case. But Alito issued a five-page statement decrying the lower courts for concluding that "a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian."
"That holding exemplifies the danger that I anticipated in Obergefell v. Hodges," Alito wrote, referring to the 2015 case that established a constitutional right to same-sex marriage. "… [N]amely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be 'labeled as bigots and treated as such' by the government."
Because Alito agreed with the court's decision not to review the Missouri case based on unrelated legal issues, this side comment can only be viewed as a salvo to reopen what is supposed to be the settled topic of same-sex marriage rights.
With just two justices from the original 5-4 Obergefell majority still on the bench — and a current right-wing supermajority that has already rolled back abortion rights and is threatening others in service to a clear partisan agenda — this should be a blaring warning signal.
The implications go far beyond the issue of seating jurors, but it's worth considering how Alito's logic here would apply to a case involving, say, an interracial couple. If that interracial relationship wasn't just incidental to the case but was a core factor in it (as the same-sex relationship was a core factor in the Missouri case), would it be unreasonable to bar prospective jurors based on their personal opposition to interracial marriage?
As it happens, interracial marriage derives its constitutional protection largely from the same source as protections for same-sex marriage, along with contraceptive access and, until recently, abortion: the 14th Amendment's due-process clause, which has been interpreted to protect privacy.
When the court in 2022 overturned Roe v. Wade, Alito, writing for the majority, stressed that, though that decision found that the 14th Amendment didn't protect abortion rights after all, it shouldn't be interpreted to affect other rights under that amendment.
Yet in a concurring opinion in the same case, Justice Clarence Thomas suggested exactly that: The court, he wrote, should "reconsider" other rights guaranteed under the 14th Amendment, mentioning specifically the rights to contraceptive access, same-sex marriage and even non-marital same-sex relationships.
(Interestingly, Thomas didn't explicitly suggest reconsidering the right to interracial marriages like his own. But that issue, too, would logically be part of any broad rolling back of privacy rights.)
Alito's comment edging back into the same-sex-marriage debate comes in the context of an emboldened conservative movement casting around for other rights to erode on the heels of Roe's demise.
In Missouri and some other red states, politicians are exploring new limits on voter referendums, free speech and even freedom of interstate travel in their zeal to enforce their new abortion bans. Alabama's top court this month declared frozen embryos to have full rights of personhood, throwing couples seeking in vitro fertilization into crisis. Other states' politicians are testing the waters toward outlawing some forms of contraception.
Will marriage rights be in their sights next? The possibility should surprise no one. Elections have consequences, as the saying goes, and America may not be done feeling the consequences of a radicalized GOP that has the nation's top court in its pocket.
