Since Trump’s reelection in November – which saw a 700% increase in LGBTQIA+ youth crisis calls – anti-LGBTQIA+ voices in government and everyday life have been emboldened.
In the days since assuming office, Trump has signed a number of executive orders taking aim at DEI, as well as targeting the trans community: banning them from the military, removing ‘X’ gender markers and barring their access to single-sex spaces which correspond with their gender.
While Trump hasn’t yet tabled marriage equality as a topic for discussion – and, in fact, has recently appointed the gay, married billionaire Scott Bessent as his Treasury secretary – Republican lawmakers in Idaho are taking aim.
On 27 January, Idaho’s House voted 46-24 to pass a joint memorial to reject the 2015 Supreme Court ruling in Obergefell v Hodges which legalised same-sex marriage across the US aiming to “restore the natural definition of marriage, a union of one man and one woman.” It has now passed to the Senate.
Idaho’s Constitution has a trigger law meaning that marriage equality could immediately be outlawed once federal protections disappear.
The memorial was proposed by GOP state Rep. Heather Scott, who argued that the measure was a matter of “restoring the issue of marriage and enforcement of all laws pertaining to marriage back to the several states and the people.”
So, should we be concerned? Well, a joint memorial does not carry the force of the law and, instead, acts like a petition – as it stands there’s a long way to go before marriage equality is overturned.
Bill Mitchell, the Idaho policy counsel for Legal Voice argues that the measure is primarily to promote a culture of discrimination. “For two decades, Idaho lawmakers have ignored calls from community members to include “sexual orientation” and “gender identity” in Idaho’s Human Rights Act,” Mitchell explains.
“Today, Idaho remains one of 18 states without statewide anti-discrimination protections for LBGTQ+ people. That means you can be fired from your job, lose your housing, or be refused service because of who you are. The only purpose of this year’s memorial on marriage equality is to further entrench this culture of discrimination. It does nothing to change the law.”
As marriage equality is constitutionally protected, state lawmakers can’t overturn it. The only way for it to change would be for the Supreme Court to hear a legal case presenting the issue and voting in a majority to overturn the decision.
Normally the Court is hesitant to reverse decisions, but various commentators have noticed that, in his closing comments in the ruling which overturned Roe, Justice Clarence Thomas suggested that the Court could “reconsider” major cases involving “substantive due process precedents” – which would include marriage equality.
Christopher F. Stoll, Senior Staff Attorney at National Center for Lesbian Rights, emphasises that this is unlikely to come into play in this instance. “Although Justice Thomas has suggested that the Supreme Court reconsider its freedom to marry decision, the Court ordinarily is very reluctant to overturn its previous decisions,” Stoll explains.
“In 2017, for example, the Court reaffirmed same-sex couples’ freedom to marry in a case involving Arkansas’ refusal to issue birth certificates naming both spouses as parents. Chief Justice Roberts joined the majority in upholding the Court’s freedom to marry decision, even though he had not supported recognising the freedom to marry for same-sex couples initially. If other members of the Court share a similar view, it’s unlikely that the Court will reconsider the freedom to marry, at least not anytime soon.”
Understandably, queer people across the US are concerned about the precedent that the memorial in Idaho might set. However, it’s worth noting that a blanket ban on same-sex marriage looks unlikely. “Same-sex couples have a constitutionally guaranteed right to marry in every state,” says Stoll. “The only way that could change would be for the Court to hear a legal case presenting that issue. Currently, there is no sign that a majority of the justices are inclined to reconsider the Court’s freedom to marry decision anytime in the foreseeable future.”
Furthermore, actions by the Biden administration would ensure that even if the Supreme Court’s marriage equality decision is overturned, same-sex marriages performed in one state would have to be legally recognised in others. “Even if the Supreme Court were to overturn its marriage equality decision someday, that would not mean that couples would be unable to marry in every state,” Stoll adds.
“Many states will continue to permit same-sex couples to marry, and federal law will continue to require all states to respect those marriages. The Respect for Marriage Act, which was passed by Congress and signed by President Biden, requires the federal government and all states to recognise the marriages of same-sex and interracial couples as long as the marriage was valid in the state where it was performed.”
Going forward, it’s possible that, similar to what is happening in Idaho, we will see more challenges to marriage equality from various state lawmakers. However, these don’t undermine the right to equal marriage and are mostly designed to stoke fear among the LGBTQIA+ community and emboldened ant-LGBTQIA+ factions.
“Although it’s possible that legislators in other states could propose similar resolutions, those measures are just political stunts,” says Stoll. “Only the US Supreme Court can change the law that allows same-sex couples to marry, and there is no sign they are likely to do so anytime soon.”
