By Julia Forrest, Michigan Advance
As the U.S. Supreme Court plans to hear in December a challenge to Mississippi’s abortion ban that could overturn the landmark 1973 Roe v. Wade decision — some LGBTQ+ advocates are concerned that threats to same-sex marriage are on the horizon.
The Supreme Court only ruled six years ago to legalize same-sex marriage in Obergefell v. Hodges. Justice Anthony Kennedy, who wrote the decision, has since retired. The court’s current conservative 6-3 majority is largely seen as being unsympathetic to the decision, with even Chief Justice John Roberts, who has sometimes sided with liberal justices, writing a dissent.
In an amicus brief in the Mississippi case, Dobbs v. Jackson Women’s Health Organization, Texas Right to Life invited the Supreme Court to not just overturn Roe and another key abortion decision, Planned Parenthood v. Casey, but also dump Obergefell. Texas this month enacted its own abortion ban, which SCOTUS declined to stop from going into effect.
“We need to really keep a sharp eye out for a potential case coming up that would do what happened with the Texas abortion ban,” said Amy Hunter, executive director at OutFront Kalamazoo. “That’s the thing I think that worries me the most, that Obergefell would be gutted without ever ruling directly on it. We really just need to stay on top of it and various advocacy groups need to keep pushing for codification of same-sex marriage in law in the states.”
In Michigan, the right to same-sex marriage has never been codified into law, although Democrats have introduced bills to do so. So Michigan’s 2004-passed ban remains in the Constitution and state law, although it’s been overridden by the 2015 U.S. Supreme Court decision.
However, if Obergefell is overturned, Michigan’s state ban would be back into effect — similar what would happen if the Supreme Court tosses Roe and Michigan would revert back to its 1931 abortion ban, although that law’s outmoded language would make it ripe for litigation.
Michigan’s 2004 ban on same-sex marriage was one of the cases at the center of the Supreme Court’s 2015 decision to establish the right for same-sex couples to marry. (Obergefell v. Hodges was an Ohio case that had the lowest assignment number out of the multiple cases involving numerous states — that’s why it’s the name of the decision).
Before she was elected attorney general as a Democrat in 2018, Dana Nessel was the attorney for Michigan plaintiffs in the case.
If Obergefell were to be overturned, it could impact about 23,700 same-sex couples sharing a household in Michigan, 12,500 of which are married.
A June national Gallup survey found 70% support same-sex marriage — a new high. Support was around 60% when the Obergefell decision came down. The new poll also found that 55% of Republicans now back same-sex marriage.
State Sen. Jeremy Moss (D-Southfield) this week expressed dismay that Michigan has taken no action to codify the right to same-sex marriage.
“All of the rights that we enjoy are through Supreme Court decisions that were never codified in Michigan law,” Moss said. “It was only the Supreme Court that stepped in to help our community. This is a stark reminder of how much our community is vulnerable to discrimination and second-class status unless we change the statutes here in Michigan.”
Last legislative session, state House Minority Floor Leader Yousef Rabhi (D-Ann Arbor) organized a group of 29 Democratic representatives to sponsor a 54-bill package to revoke the state’s legislative marriage equality bans and amend discriminatory gendered language. But the GOP-controlled chamber never took it up.
This term, Rabhi reintroduced a constitutional amendment, House Resolution J, and was able to garner 11 more co-sponsors. It’s been referred to the House Government Operations Committee, however, where many bills have been sent to die.
In a 2019 interview with the Advance, Nessel expressed concern that Obergefell could fall when the U.S. Supreme court only had a 5-4 conservative majority. She argued that America was moving into “some really dangerous territory” regarding LGBTQ+ rights and civil rights.
Justices Clarence Thomas and Samuel Alito signaled in 2020 that SCOTUS should overturn the Obergefell v. Hodges ruling after defending a clerk in Kentucky who refused to issue marriage licenses to same-sex couples. Justice Neil Gorsuch wrote a dissent against equal rights for same-sex parents in another case.
Erin Knott, executive director of Equality Michigan, said that although she is “not concerned at this point in time” that Obergefell will be overturned, she will continue to work with Rabhi and other lawmakers “to find that path forward so that we can finish this work once and for all” to codify same-sex marriage in the state of Michigan.
“We’re calling on the Legislature to take action, it really is a housekeeping issue, because marriage is the law of the land,” Knott said. “We’d be updating our laws [and] cleaning up our constitution so that we are aligned with what the United States Constitution has stated is the law of the land. The Legislature has the opportunity, the bills are sitting there. I would call on both the House and the Senate to hold some hearings, and to put these bills up for votes in the immediate future.”
There have been other recent attempts to expand rights and protections for LGBTQ+ people in Michigan, but they also have hit speed bumps.
In March, Moss, alongside Rep. Laurie Pohutsky (D-Livonia) and Democratic Gov. Gretchen Whitmer, announced bicameral legislation that would ban discrimination based on sex, gender identity or sexual orientation in the state’s Elliot-Larsen Civil Rights Act.
Legislation has been introduced in past terms. However, this time, bills have GOP sponsors in both the Senate and House. But so far, there have been no hearings.
A 2019 poll by the Chicago-based Glengariff Group found 74% of likely Michigan voters backed legislation banning LGBTQ+ discrimination in jobs and housing. That includes about 70% of those who identify as “Lean GOP,” and almost 60% of those who identify as “Strong GOP.”
LGBTQ+ rights advocates also have turned to the ballot process.
Fair and Equal Michigan submitted signatures for a pro-LGBTQ+ constitutional amendment to Elliott-Larsen in time for the 2022 election. However, the Board of State Canvassers rejected the petition, saying it lacked enough signatures. Fair and Equal Michigan has since filed an appeal with the Michigan Supreme Court.
“This decision to file is not something we take lightly and are doing so with the deepest respect and love for our Constitution and our great state,” said Fair and Equal Michigan Co-Chair Trevor Thomas in August.
In a separate action, the Michigan Supreme Court agreed in July to bypass the Court of Appeals and hear the appeal of Rouch World LLC v. Department of Civil Rights. The case will effectively determine whether Michigan’s Elliot-Larsen Civil Rights Act includes non-discrimination protections for LGBTQ+ people.
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