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Same-Sex Marriage in America: What Happens if the Supreme Court Takes Up Kim Davis’ Case?

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The U.S. Supreme Court is set to meet behind closed doors this week, where it will consider whether to hear a petition filed by former Kentucky county clerk Kim Davis, who is urging the justices to overturn Obergefell v. Hodges, the 2015 landmark ruling that guaranteed same-sex couples the same legal rights and responsibilities of marriage as different-sex couples.

Will the Court take up the case?

Would they go so far as to overturn Obergefell?

What happens if they do?

The jury is out on the first two questions. Some experts believe the justices won’t take up Davis’s case at all, while others say they will, and see it as a vehicle to overturn marriage equality and toss it back to the states — which the Court did in Dobbs — removing the constitutional right to abortion.

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And what happens if they take it up, and take marriage rights from same-sex couples?

Currently, there are 32 states across America that still have laws on their books limiting or banning same-sex marriage, according to Axios. Just 18 states, along with five territories and Washington, D.C., have no marriage equality bans, according to the Movement Advancement Project.

MAP estimates that nearly half (47%) of all LGBTQ people in the U.S. live in areas where their state laws and constitutions ban same-sex marriage. The marriage bans could become law again should the Supreme Court overturn Obergefell. Like the SCOTUS decision that ignored precedent and “settled law” by striking down Roe v. Wade, those bans could spring back into action and become state law once again.

State lawmakers have done little to overturn those same-sex marriage bans and enshrine the rights of same-sex couples into their state laws and constitutions as a backstop to the Supreme Court’s possibly impending decision to overturn Obergefell.

Last month at Politico, Professor of Law Kimberly Wehle served up “5 Reasons the Supreme Court Might Change Its Mind on Same-Sex Marriage.”

Wehle notes that the Court’s composition itself is far different than it was in 2015. There is a staunchly conservative 6-3 majority on the bench. Justice Clarence Thomas has called for a review of all “substantive due process” Supreme Court precedents on which Roe v. Wade was based.

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In his Dobbs concurring opinion, Thomas wrote: “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [v. Connecticut], Lawrence [v. Texas], and Obergefell [v. Hodges]. Because any substantive due process decision is ‘demonstrably erroneous’ . . . , we have a duty to ‘correct the error’ established in those precedents.”

Wehle also wrote that three justices who wrote strong opinions against same-sex marriage — Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito — remain on the bench. She notes that the Chief Justice wrote that “although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage.”

Now, Kim Davis’s case needs just four justices to grant certiorari — a vote to take up the case.

Legal scholars warn that Obergefell could face new scrutiny under the Court’s “history and tradition” test, a framework some consider highly controversial.

Wehle also points to several recent cases that SCOTUS decided against the LGBTQ community.

There are other issues underfoot that might bolster the Supreme Court’s decision-making process.

The Texas state Supreme Court, for example, last week, ruled that judges may refuse to marry same-sex couples, merely citing their “sincerely held religious belief” against the practice.

Longtime legal writer and commentator David Lat does not believe the Court will take up Davis’s case and overturn Obergefell, in part on technical grounds.

Republican strategist David Urban, in a USA Today opinion piece last week, claimed, “Marriage equality isn’t in danger, but Democrats need you to stay afraid.”

His reasoning?

“Support for same-sex marriage is on the rise, including on the right.”

Not according to a May Gallup poll, as NCRM reported at the time.

Nearly nine in ten Democrats (88%) say marriages between same-sex couples should be recognized by law as valid, according to Gallup, but less than half that—just 41 percent—of Republicans agree. That’s a fourteen-point drop from the highest level recorded for right-wing voters, 55 percent, in 2021 and 2022.

“The current 47-point gap between Republicans and Democrats is the largest since Gallup first began tracking this measure 29 years ago,” the polling firm reported.

Asked whether they “personally believe that in general” gay or lesbian relations are “morally acceptable or morally wrong,” even fewer Republicans, just 38 percent, said they are morally acceptable. The national average is 64 percent, and the average among Democrats is 86 percent.

Indeed, one of Wehle’s reasons same-sex marriage might be in trouble is that overturning the ruling would be good for Republican politics.

“Overruling Obergefell could be good for the GOP, too,” she wrote. “With pivotal congressional midterm elections coming up, an opportunity to vote against LGBTQ+ rights could turn out a subset of far-right voters in red states who might otherwise stay home.”

And she observed, the “threat of political pushback from the left has proven to be irrelevant to these justices.”

Last week, MSNBC reviewed the Davis case, and noted that “since John Roberts became Chief Justice in 2005, the court has ruled in favor of religious organizations in 85% of the argued cases it heard.”

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Trump Envoy Invites Kids in Greenland to Come to America for Chocolate Chip Cookies

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President Donald Trump’s Special Envoy to Greenland, Louisiana Republican Governor Jeff Landry, touched down in Nuuk on Sunday, saying he arrived “simply to build relationships,” and to “see if there are opportunities” to expand them.

The U.S. Ambassador to Denmark, Ken Howery, arrived on Monday to take part in this week’s Future Greenland 2026 conference. Landry is also expected to attend.

President Donald Trump has suggested the U.S. should take over Greenland. The New York Times reports that negotiators from the U.S., Greenland, and Denmark, have been in talks about Greenland’s future. Greenland and Denmark have been adamant that the U.S. cannot acquire Greenland.

The vast majority of Greenlanders, who are part of the Kingdom of Denmark, have said they do not want to be acquired by the United States. Denmark has also stated Greenland’s future is not up for negotiation, and several European leaders have stressed that the United States cannot interfere with Greenland — with at least one, Danish Prime Minister Mette Frederiksen, warning that if Trump were to engage in a military incursion it would mean the end of NATO.

“I would like to make a deal,” Trump told reporters in January.

“You know, the easy way, but if we don’t do it the easy way we’re gonna do it the hard way,” the president said.

In March, Danish public broadcaster DR, via a Google translation, reported that Trump’s remarks, when he threatened that the U.S. could acquire Greenland the easy way or the hard way, had accelerated the governments’ plans.

Denmark had formed an alliance with France, Germany, Norway, and Sweden, flew heavily armed Danish F-35 fighter jets and troops to Greenland with bombs to blow up its own runways if necessary to prevent U.S. aircraft from landing, and prepared for casualties by flying bags of blood to the autonomous territory of roughly 56,000 residents.

On Monday, according to video posted by Orla Joelsen, a native Greenlander and a prison official in Nuuk, the GOP governor spoke with some local children.

“If you come to Louisiana,” Governor Landry says in the video, “and you come to the governor’s mansion — all the chocolate chip cookies you can eat.”

 

Image via Shutterstock

 

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Trump Obsessed With Self-Enrichment as ‘Little Man’ Pays the Price: Columnist

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President Donald Trump remains “obsessively focused” on “personal glory and enrichment” — ignoring the economic suffering of the working people he last week dismissed as the “little man,” Jeet Heer writes in The Nation.

“Donald Trump is annoyed that he can’t celebrate the massive profits oil companies are making due to the war he launched in the Middle East,” writes Heer, The Nation’s national affairs correspondent. Trump would be “exulting in the hundreds of billions of dollars produced by skyrocketing oil prices—if it weren’t for the pesky fact that it comes at the expense of ordinary Americans.”

Americans are paying roughly 40 percent more at the gas pump than they did before Trump started his war in Iran three months ago, Heer notes. But in an interview with Fox News’ Sean Hannity last week, Trump said, “I don’t want to say we’re making a fortune, you understand that? Because if I say that, they’re going to say ‘oh, he forgets about the little man with the $4 gasoline.’”

Meanwhile, Republicans’ response “to the harm caused by Trump’s policies” is not to change course “or even to appear sympathetic about their effects,” but rather, “to express their total indifference to the suffering of the American people.”

Heer looks at a Bloomberg report from last week that revealed Trump or his financial advisors made over 3,700 trades during the first quarter of this year, “a flurry totaling tens of millions of dollars and involving major companies that have dealings with his administration.”

Trump won the White House — twice — by promoting a message of economic populism, but that has gone by the wayside. Heer writes: “allowing Trump to steal the rhetoric of economic populism” was one of “the most catastrophic mistakes” Democrats have made in the last decade.

Now, Trump is making the same messaging error Biden did — an error that cost Democrats the White House in 2024. But that error opens the door for Democrats to “reclaim economic populism” as their own message.

Citing the “apocryphal words misattributed to the French Queen Marie Antoinette: ‘Let them eat cake,’” Heer writes that Trump said: “I don’t think about Americans’ financial situation. I don’t think about anybody. I think about one thing: We cannot let Iran have a nuclear weapon. That’s all.”

 

Image via Reuters 

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Why Even the MAGA Far Right Has Turned on Neil Gorsuch: Political Scientist

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U.S. Supreme Court Justice Neil Gorsuch’s book tour was met with staunch criticism by the far-right, but underneath the anger, political scientist Daniel Ruggles writes, was a critical revelation: the conservative movement is split between hard-right MAGA nativists and mainstream constitutionalists.

Writing at The Bulwark, Ruggles notes that at his core, Justice Gorsuch — like all conservatives to varying degrees on the Roberts Supreme Court, is an originalist: he believes the constitution should be interpreted as it was understood when written.

But the MAGA hard right has not embraced originalism, and, Ruggles writes, “originalism’s slow seep into both conservative and mainstream constitutional law will not be easily undone.”

“Fundamentally, originalists accept the democratic constraints of the Constitution and believe them to be a core component of America’s political tradition,” Ruggles writes. “Postliberals and their nativist fellow travelers” — MAGA, for example — “have begun to reimagine the American state without any such constitutional guardrails.”

Gorsuch’s book tour enraged MAGA because he kept focusing on “creed.”

“The United States is a ‘creedal’ nation—that is, a nation unified by common belief in rights, liberties, and democratic institutions,” Ruggles writes.

Gorsuch explained that Americans share a “heritage,” but, Ruggles said, “it’s one of ideals, not ethnicity. Being an American requires not lineage, but belief.”

“It was a gentle rebuke of nationalism—and it drove the hard right nuts,” Ruggles wrote.

Ruggles added that the “clash over an American ‘creed’ portends something dark as well, to the degree it shows deep tensions between the extremist, illiberal right and its originalist predecessors.”

The MAGA hard right is rising, and has sought “key privileges in the Trump presidency,” Ruggles explains, while originalists have a “critical institutional advantage on the bench of the Supreme Court and other courts” that insulates them from MAGA’s populism.

“Who wins this battle,” Ruggles warns, “will fundamentally redefine America.”

 

Image via Reuters 

 

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