Donald Trump has renewed his commitment to appoint justices to the U.S. Supreme Court who would reverse marriage equality — but legal observers are skeptical he’ll be able to make good on his pledge if he’s elected president.
On Monday, Trump during a news conference at a D.C. construction site, announced he’d make public soon a list of 10 conservatives from which as president he’d select his nominees for the Supreme Court. The list, Trump said, was being made in consultation with The Heritage Foundation, a conservative think-tank known for its opposition to LGBT rights.
“We’re going to have a conservative, very good group of judges,” Trump said. “I’m going to submit a list of justices, potential justices of the United States Supreme Court that I will appoint from the list. I won’t go beyond that list.”
Responding to criticism from rival Sen. Ted Cruz (R-Texas) that a Trump administration would be open to appointing liberals to the Supreme Court, Trump said, “People say maybe I’ll appoint a liberal judge. I’m not appointing a liberal judge.”
Making the case it would be a “disaster” for Republicans to run a third-party candidate against him in the general election, Trump said that would enable the election of a Democratic president who’d have numerous opportunities to make liberal appointments to the Supreme Court.
“You’re going to have probably four and could even be five Supreme Court justices approved that will never allow this country to be the same,” Trump said. “It’ll take a hundred years, but that won’t work. So they better be careful, and they certainly should be careful with third party stuff.”
Trump’s pledge to appoint justices to the Supreme Court from a list of conservatives builds on previous comments in which he said he opposes same-sex marriage and would seek to appoint justices who’d reverse the Supreme Court’s historic 2015 Obergefell v. Hodges decision.
Calling the ruling “shocking” and “massive” in an interview last month with the Christian Broadcasting Network, Trump said social conservatives should trust him to oppose same-sex marriage. In a January interview on Fox News just before the Iowa caucuses, Trump said he’d “strongly consider” appointing justices who’d reverse the Supreme Court’s historic decision in favor of same-sex marriage.
Despite the renewed commitment from Trump, legal experts say Trump is unlikely to change the makeup of the court for some time, and even if he did, it’s hard to imagine a sufficient conflict emerging that would prompt the Supreme Court to reverse the decision.
James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, said the “chances are virtually nil” of Trump overturning the Supreme Court ruling in favor of marriage equality.
First Trump has to win the election, Esseks said, then he has to have the opportunity to replace justices on the high court who had ruled in favor of Obergefell. Such an opening, Esseks said, would likely only happen as time goes on after the country has become more acclimated to marriage equality, which polls have shown 60 percent of the population already supports.
“There’s no reason to think this is going to happen anytime soon,” Esseks said. “The more time goes on, the more the country gets used to the current reality, which is same-sex couples are marrying in every corner of the country. This is just part of the landscape now. I think it’s very unlikely both that there’s going to be justices that want to overturn it and the country’s going to be a place where people are going to want to have this discussion again in any serious way.”
Evan Wolfson, former president of the now-closed Freedom to Marry, was among those skeptical that Trump could reverse the Supreme Court decision on same-sex marriage.
“While there are scenarios one could spin out in which our freedom to marry is overturned, I think it highly unlikely, especially given that more than 1 million gay people have gotten legally married and, even before winning in the Supreme Court, we had won in the court of public opinion,” Wolfson said. “A near super-majority of Americans support the freedom to marry.”
If Trump meets the first condition of changing the makeup of the court, there then would need to be a conflict on the issue of same-sex marriage that would compel the court to revisit the issue. One possibility is a state could decide to defy Obergefell and pass a law barring or inhibiting marriage rights for gay couples.
Such a measure already failed just two months ago in Tennessee. The Natural Marriage Defense Act, which would have sought to block the Supreme Court ruling in favor of same-sex marriage, died in a House committee after a 4-1 vote against the measure.
Another way the conflict could present itself to the Supreme Court is a Kim Davis-like situation in which a clerk refuses to give marriage licenses to same-sex couples, prompting either a lawsuit from same-sex couples or from the clerk if that official is removed from his or her post.
In either scenario of a new state law or a defiant clerk, the subsequent lawsuit would almost certainly result in the trial court and the appellate court upholding same-sex marriage in accordance with the precedent of Obergefell. At that time, the Supreme Court would have the opportunity to weigh in after a writ of certiorari is filed before justices.
But Esseks said even with a changed court in those situations, justices may deny the petition to rehear the issue because the Supreme Court has already ruled.
“You got to look around: We haven’t seen a backlash of the basic idea that same-sex couples get to get married,” Esseks said. “It is now part of reality in this country, and we see some nibbling around the edges, but no frontal assault because this is right and people don’t see a way around the Supreme Court, and I don’t think that even with a President Trump that that is going to change.”
John Eastman, board chair of the anti-gay National Organization for Marriage, stood out from the pro-LGBT legal observers by saying he’s not so sure Trump would be unable to reverse the decision.
“If he replaces Ruth Bader Ginsburg and Anthony Kennedy with people who are more Scalia and Alito and Thomas, then I think the chances are good,” Eastman said. “It was certainly a contentious decision, one where the dissent uniformly challenged not only the reasoning of the decision and the wrongness of the outcome, but the very legitimacy of the decision.”
Eastman drew attention to the dissent written by the late U.S. Associate Justice Antonin Scalia, which Eastman said encouraged states not to comply with the decision.
“In those terms, I think we have a decision much like Dred Scott and Lincoln’s response in first inaugural,” Eastman said. “It settles the matter for that particular group of plaintiffs but if it were to take it as settling the matter for the entire country, we’ll have ceased to be self-governing to that extent.”
In the event the Supreme Court did elect to reconsider the issue, another layer of defense for marriage equality is stare decisis, a legal term meaning the Supreme Court generally allows an issue already resolved by the courts to remain resolved.
One example of a Supreme Court decision exemplifying this idea is the 1992 ruling of Casey v. Planned Parenthood, the result of a lawsuit challenging several provisions of Pennsylvania state law restricting access to abortion. When the Supreme Court decided to take up the case, observers wondered 19 years after Roe v. Wade if newly appointed U.S. Associate Justices Anthony Kennedy, Sandra Day O’Connor and David Souter would elect to roll back abortion rights.
As it turned out, those three justices upheld the right to an abortion (although they altered the standard for analyzing restrictions on that right) under the principle of stare decisis.
“The Roe rule’s limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail,” the justices wrote. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed.”
Adam Romero, senior counsel and Arnold D. Kassoy Scholar of Law for the Williams Institute at the University of California, Los Angeles, cited the Casey decision in saying stare decisis would likely be the guiding principle for a Supreme Court revisiting the issue of same-sex marriage.
“Stare decisis would strongly counsel any future justice of the Supreme Court to not overrule Obergefell v. Hodges, even if that justice has personal reluctance to the correctness of its holding,” Romero said. “However, the rule of stare decisis is not absolute. If a majority of the court were inclined to overrule Obergefell, it could certainly do so in the appropriate case, or could limit Obergefell’s reach in the area of parenting for example.”
Wolfson said instead of fretting about Trump overturning the ruling in favor of same-sex marriage, LGBT advocates should focus on the new goal of securing LGBT non-discrimination protections in federal law.
“Rather than worrying about remote worst-case scenarios, better to focus on avoiding the greater danger: That we get complacent, miss chances to capitalize and expand on the marriage conversation as an engine of transformation, and fail to do the legal and political organizing to harness the power of our marriage win to the work of winning non-discrimination protections while increasing cultural acceptance and inclusion for LGBT people throughout the U.S. and around the world,” Wolfson said.