For a long time now, a handful of anti-gay groups has been saying they have a plan to undo marriage equality. And now that Donald Trump is president, they’ve been acting confident that they can set that plan into motion. But can they do it? Is marriage equality really at risk?
Yes, in fact, it is. And they could do it in just three easy steps.
1. Start by Weakening Protections
They can’t repeal marriage right away, but they can start laying the groundwork by passing some laws that seem like they should be unconstitutional.
For example, in Arkansas, the state is setting up a plan to provide a different set of rights to gay versus straight married couples. The state Supreme Court just ruled that straight couples can automatically be listed as parents on birth certificates, even if one isn’t biologically related to the child. But gay couples can’t.
And in Texas, a group of activists is suing to stop Houston from providing spousal benefits like health insurance to the same-sex spouses of city employees. Their claim: The state may have to issue marriage licenses, but then they can just ignore those licenses. And a bill called SB89 would bar the state from issuing the licenses at all, saying that state law should trump federal law.
These rulings and laws will likely need review by the Supreme Court—which is going to be a problem, given the hands that the court is going to be in.
2. Strategically Appoint Republicans in Key Positions
We don’t know who Trump will nominate to the Supreme Court, but one of his friends is Bill Pryor, a judge who wanted states to be able to arrest gay people for having sex. And Trump wants to install Jeff Sessions at the Department of Justice—a man who a decade ago tried to amend the U.S. Constitution to stop gays from marrying.
As Attorney General, Jeff Sessions could use the Department of Justice to try to overturn marriage equality. All he’d need to do that is a lawsuit or conflict to come up to the Supreme Court. And remember those weirdly unconstitutional laws and rulings happening at the state level? They’ll provide the perfect opportunity.
3. Create a Lawsuit-Engine
The Supreme Court might not be ready to overturn marriage, even if Jeff Sessions asks his fellow Trump-swamp-monsters to do so. So they have a backup plan: the First Amendment Defense Act, which would let random strangers undo your marriage.
If Trump signs FADA, which he said he would, any person or company would have the right to decide they will not honor your marriage license. You could lose health coverage, family and medical leave or any assurance that the IRS will accept your taxes.
It will cause chaos and generate countless lawsuits until the right case to overturn marriage comes along.
The Republican Plan: Redefine Marriage
So for now, you can still get married. But marriage won’t mean what it once did. Marriage once meant that you’d get a whole suite of rights and protections—but soon it could mean that you’ll have no idea when those rights might just disappear. Marriage will constantly change depending on where you go, and who you’re talking to.
In other words: The Republican plan is to redefine marriage.