This week, Supreme Court Justice Anthony Kennedy freaked out LGBTQ Americans by announcing his retirement. Once Donald Trump installs another conservative justice onto the bench, there’ll effectively be enough votes to overturn the 2015 gay marriage decision and make it illegal once again to marry a person of the same sex. And if that happens, marriage equality will immediately become illegal again in the 30 U.S. states that still have gay marriage bans on their books.
There are those who think that the U.S. Supreme Court would never risk the political overreach and rioting that would come by overturning marriage. Perhaps. It’s far more likely that the Court will simply allow same-sex marriages to continue but allow their rights to be hollowed out by business owners who claim that their “sincerely held religious beliefs” should allow them to discriminate against LGBTQ couples and legislators who think we should deny same-sex couples the right to adopt children and other such things. In this way, we’d still have gay marriages, but of a second-class variety.
But if the U.S. Supreme Court does try and overturn same-sex marriage entirely, then it’s entirely possible that same-sex marriage would become a state issue, just like it was before 2015, leaving a patchwork of marriage laws that differ from state to state.
In the map above, the darkest states have constitutional amendments forbidding any marriage-like contract between same-sex couples, the burgundy states have amendments banning same-sex marriage or civil unions and the red states have ones banning same-sex marriages.
While LGBTQ activists can pressure legislators to remove these amendments, it’ll be a tough slog in states with Republican-led congresses.
If the U.S. Supreme Court decides to be even crueler, they could try and overturn the 2003 Bowers v. Hardwick decision which ruled sodomy laws as unconstitutional. At least 10 U.S. states still have anti-sodomy laws on their books — Alabama, Florida, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Texas and Utah — which would immediately re-criminalize same-sex intercourse between consenting adults.
This isn’t to scare-monger so much as to remind everyone that these laws exist, they need to be repealed and we need to be prepared to fight, no matter who ends up in Justice Kennedy’s seat. Trump says he has shortened his list of candidates to five people (all conservative) and will announce his pick on Thursday, July 5 — brace yourselves.