IE 11 is not supported. For an optimal experience visit our site on another browser.

As high court signals Roe v. Wade reversal, states eye same-sex marriage protections

Some state lawmakers have taken steps in recent weeks to protect same-sex marriage in the event the high court reverses its landmark 2015 decision.
Carlos McKnight of Washington, waves a flag in support of gay marriage outside of the Supreme Court on June 26, 2015.
Carlos McKnight, of Washington, waves a flag in support of same-sex marriage outside of the Supreme Court on June 26, 2015.Jacquelyn Martin / AP file

Nearly seven years after the Supreme Court ruled same-sex marriage the law of the land, New Jersey enacted a law Monday to protect this relatively new right throughout the Garden State. 

Prior to the Supreme Court’s landmark decision in Obergefell v. Hodges — which legalized sex-marriage nationwide in 2015 — New Jersey’s state courts had already struck down a same-sex marriage ban in 2013.

But as a majority of the Supreme Court’s conservative justices appeared open to overturning Roe v. Wade last month, new fears that the court could also make an about-face on the Obergefell ruling have prompted some lawmakers to enshrine same-sex marriage into state law.

“We’ve been fighting for marriage equality for decades, and to turn back the clock would be devastating,” New Jersey Assemblywoman Valerie Vainieri Huttle, who co-sponsored the newly passed bill, told NBC News. “I can’t emphasize enough the fact that we need to safeguard it in light of what’s happening on a federal level today.”

Both chambers of the New Jersey Legislature passed the bill last month, and New Jersey Gov. Phil Murphy, a Democrat, signed it into law Monday.

“Despite the progress we have made as a country, there is still much work to be done to protect the LGBTQ+ community from intolerance and injustice,” Murphy said in a statement. “New Jersey is stronger and fairer when every member of our LGBTQ+ family is valued and given equal protection under the law.”

Last month, the Supreme Court heard 90 minutes of oral arguments concerning a Mississippi law that would ban almost all abortions in the state after 15 weeks of pregnancy. A majority of the court’s conservative justices appeared prepared to uphold the law and possibly overturn Roe v. Wade — the 1973 landmark decision holding that women have a constitutional right to have an abortion before fetal viability, usually around 24 weeks.

The prospect of the 1973 ruling being overturned has prompted fears among lawmakers and LGBTQ advocates that the justices might also walk back precedent on a range of other cases, including Obergefell.

Before the Supreme Court legalized same-sex marriage nationwide, 37 states and U.S. territories had already legalized marriage equality. But of those, only 19 had legalized the nuptials through state legislation, according to an NBC News analysis. Therefore, if the Supreme Court were to overturn Obergefell, same-sex marriage would be prohibited in the majority of the country and vulnerable in states where it was not written into law.

“The Supreme Court right now is showing us that nothing is guaranteed,” West Virginia Del. Cody Thompson said. “A lot of things that we take for granted right now, that we think are enshrined and are safe, ultimately now we’re realizing are not safe and are not necessarily always going to be there for us unless we remain vigilant.”

In response to the court’s oral arguments on reproductive rights, Thompson and fellow West Virginia Del. Danielle Walker — who are the Legislature’s only out LGBTQ lawmakers — said they will introduce a bill this month to codify same-sex marriage into law, similar to the legislation New Jersey enacted this week. West Virginia legalized same-sex marriage through litigation in 2014, but it never enshrined the right through legislation.

While the court’s seeming willingness to overturn Roe v. Wade has sparked fears among some state lawmakers, lawyers who argued in favor of gay rights in landmark LGBTQ cases shot down the notion that the high court would overturn the same-sex marriage decision even if given the opportunity to do so.

“I appreciate that you have legislatures who are trying to step in and do what they can to update their laws,” said Mary Bonauto, who argued on behalf of same-sex couples in Obergefell and now serves as the civil rights project director at GLBTQ Legal Advocates & Defenders, or GLAD. “We all just have to be careful to avoid giving credence to the idea that reversing Obergefell is inevitable. We are not expecting this. It would be outrageous.”

Bonauto added that Obergefell was “constitutionally correct” because the court has repeatedly made clear that “marriage is a choice for the individual to make and not the government” and is “part of equality.”

Over the last several decades, the court has struck down laws when states tried to prevent people from marrying on the basis of their race, criminal history and their ability to pay child support payments.

Paul Smith, who argued in favor of gay rights in Lawrence v. Texas, which struck down state laws criminalizing consensual same-sex activity in 2003, agreed with Bonauto, saying it is “unlikely” that the court would overturn Obergefell because it is “incredibly popular.”

Support for same-sex marriage among Americans reached an all-time high last year, according to a June Gallup Poll, with 70 percent of Americans — including a majority of conservatives — in favor of it. 

“The court would be shooting itself in the foot if it were to do this,” Smith said.

Regardless, in 2020, following the Supreme Court’s rejection of an appeal from Kim Davis, a former Kentucky county clerk who denied marriage licenses to same-sex couples, two of the court’s conservative justices, Clarence Thomas and Samuel Alito, issued a blistering rebuke of the Obergefell ruling and signaled that they would be open to reversing it. 

The justices said Davis “may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last,” adding that the high court “has created a problem that only it can fix.”

Some legal experts pointed to this statement and some of the court’s more recent rulings involving same-sex couples as evidence that marriage equality remains vulnerable.

In 2018, the court issued a narrow ruling in favor of a Colorado baker who refused to make a cake for a same-sex wedding in Masterpiece Cakeshop v. Colorado Civil Rights Commission. And last year, in Fulton v. City of Philadelphia, the court ruled in favor of a Catholic adoption agency that wanted an exemption from Philadelphia’s nondiscrimination law, which would have required the agency to allow LGBTQ couples to adopt.

“The justices have been asked to chip away at the equality and liberty of same-sex couples in a variety of different contexts, and the Supreme Court has not done an adequate job in recent years of rebuffing those efforts,” said Camilla Taylor, director of constitutional litigation for LGBTQ civil rights organization Lambda Legal. “And so, certainly our opponents feel like they have an open invitation right now.”

Follow NBC Out on TwitterFacebook & Instagram