Some social conservatives are still holding on to hope that they can reverse marriage equality. The thinking goes that if Republicans keep control of the House and Senate plus win the presidency in 2016, their next target becomes the Supreme Court.
With Ruth Bader Ginsburg turning 83 next year and two other justices turning 80, court watchers expect that whoever is our next president will be picking replacements for some of the nine on the high court. Barack Obama, George W. Bush, and Bill Clinton all selected two justices during their terms. Ronald Reagan had three picks.
And if any of the next president's nominees replace justices who voted in favor of marriage equality, expect to see an immediate effort from the right wing to overturn Obergefell v. Hodges — which was a 5-4 ruling.
Maybe that sounds far-fetched. But even Hillary Clinton has warned LGBT people about this scenario, saying, "The stakes in this election are high."
"They're high, for so much of what we believe in and the progress we want to continue to make; it can be undone," Clinton told volunteers at the Human Rights Campaign during a widely publicized speech earlier this month. She explained, "The next president may get three Supreme Court justice appointments. We could lose the Supreme Court, and then there'd be a whole new litigation strategy coming from those who oppose marriage equality. We have got to stay focused, stay united."
That litigation strategy is no secret. Rick Santorum has more than once explained exactly how Republicans would try to overturn Obergefell. The former senator and current presidential candidate first shared the plan with Rachel Maddow during an interview on her MSNBC show in July. He even reiterated his plans during the first GOP debate on Fox News — at least, during the "undercard" debate that he was allowed into.
Santorum insisted to Maddow that the Supreme Court is "not a superior branch of government."
"If the Congress comes back and says, 'We disagree with you,' and were to pass a law and get it signed by the president saying the courts are wrong—"
Then an incredulous Maddow interrupted, "You could not pass a law that could contradict the constitutional ruling of the Supreme Court. You can amend the Constitution."
"Why?" asked Santorum, to her surprise.
"Because they are ruling on the constitutionality of that law," continued Maddow, expressing what most LGBT people have banked on, which is the idea that if people like Santorum want to roll back marriage equality they'd first have to complete the impossible task of winning a two-thirds majority vote of the House and Senate plus three-fourths of state legislatures. That's what it takes to revise the U.S. Constitution, which is the basis for the Obergefell ruling.
Maddow kept explaining, "They decide what’s unconstitutional," referring to the Supreme Court. "That’s how our government works."
"That’s not necessarily true," insisted Santorum, who then detailed his plan to find a loophole. Santorum's plan isn't to amend the Constitution, though he'd happily try. His plans are more fast-acting.
After winning the presidency, plus retaining control of Congress, Santorum would hope to have his pick of Supreme Court justices. Then he'd push through Congress a law that bans same-sex marriage. Because that law would be unconstitutional, it would get challenged in the courts, all the way up to the new Supreme Court.
"What I’d like to see as president is a whole new group of justices," Santorum said. "And if you have a new group of justices, you might very well get a different decision."
With the Republicans having picked the new justices, Santorum predicts, Obergefell would be overturned and the new law upheld.
Santorum isn't the only GOP presidential candidate who has signaled support for this sort of approach. Mike Huckabee has called the Obergefell ruling "judicial tyranny" and blamed Congress for not countering it. He was asked during the CNN Republican debate in September how he'd go about picking justices and quickly threw out any modicum of nonpartisanship in picking a court.
"I'm tired of liberals always having a litmus test and conservatives are supposed to pretend we don't," said Huckabee, implying prospective justices would have to line up with his socially conservative beliefs. Huckabee, a former Baptist minister, said he'd ask each of them about abortion and about so-called religious freedom. "I'd want to know, Do you believe in the First Amendment? Do you believe that religious liberty is the fundamental liberty around which all the other freedoms of this country are based?"
In some ways, social conservatives are correct. It's technically possible to overturn a Supreme Court decision. It's even happened before, on abortion no less.
In 2003, Congress passed the Partial-Birth Abortion Ban Act. The law was a response to a Supreme Court case, Stenberg v. Carhart, in which a partial-birth abortion ban in Nebraska had been ruled unconstitutional and then applied nationwide. The high court had cited both Planned Parenthood v. Casey and Roe v. Wade as precedent. But Republicans in Congress went ahead with passing their federal version under the guise that it wasn't bound by the court’s findings because of “the moral, medical, and ethical” concerns associated with partial-birth abortion.
The constitutionality of the law was inevitably challenged in what became Gonzales v. Carhart. The Supreme Court heard arguments November 8, 2006, and ruled April 18, 2007, to uphold Congress’s Partial-Birth Abortion Ban Act.
A major sticking point of the Nebraska law had been that it made no exception for the life of the mother, and congressional Republicans made no exception either. But their version of the legislation simply stated the procedure is never used to save a mother, so no exception is necessary.
One important thing had changed, though. Justice Sandra Day O'Connor had been replaced on the bench by the more conservative Samuel Alito.
In the first ruling, Justice Anthony Kennedy wrote the dissent. This time, with Alito on his side, he got to write the majority opinion, saying “compared to the state statute at issue in Stenberg, the Act is more specific concerning the instances to which it applies and in this respect more precise in coverage.”
Still, experts say it's highly unlikely, even if Republicans swapped out multiple seats on the Supreme Court, that it would overrule itself on marriage equality if given the opportunity.
"Theoretically, decisions get made at the Supreme Court by 5-4 a lot, and technically speaking, you need five votes to win a case," said Roberta Kaplan, the attorney who successfully argued Windsor v. U.S. at the Supreme Court, winning one of those 5-4 votes. "But do I think that even a very conservative court, a far more conservative court, would overrule Obergefell? The answer to that has to be no."
For starters, and as LGBT activists have been pointing out throughout the fight for marriage equality, the country is only growing more accepting.
"This country does not grant equality, has never granted equality, to large classes of Americans, and then subsequently taken their equality away," said Kaplan. "That’s not the arc of this country’s history, and it’s not going to happen here."
But it's more than a moral question. There's also legal reasoning on why it's unlikely the high court would reverse itself on something as consequential as marriage equality.
In 1992, in Planned Parenthood v. Casey, the decision included a lengthy explanation of the doctrine of stare decisis — the importance of sticking by precedent in all decisions by the Supreme Court. Justice O'Connor outlined why Roe v. Wade can't be overturned in total, and it would be easy to substitute "Obergefell" for "Roe" to understand why marriage equality can't easily be taken back.
"The Constitution serves human values," wrote O'Connor for the majority, "and while the effect of the reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed."
So many same-sex couples have already been married, have already adopted children, have already made plans for their lives around the fact that getting married is legal, it would be disruptive to upend that fact.
"I don’t think there’s any question that basically telling the children of gay parents that even though they thought their parents were married but they’re not married anymore — or that no other gay parents in their state can get married — would have precisely the kind of adverse impact and adverse consequences the Supreme Court was concerned about," Kaplan explained.
What activists agree on, though, is that Clinton is right about the persistence from opponents of marriage equality.
Even if this particular strategy for scaling back full marriage equality isn't successful for the right-wing, Clinton cautioned LGBT activists during her HRC visit that they can't become complacent.
"I know from my own personal experience, the folks on the other side, you've got to give them credit — they never quit," she said. "Their persistence is admirable, although it is hard to believe what they use it for."
RAFFY ERMAC contributed to this report.