As the nation awaits a decision from the U.S. Supreme Court regarding a Mississippi law that calls for banning abortion after 15 weeks of pregnancy, LGBTQ advocates are pushing to codify protections for same-sex marriage in states throughout the country.
Since the leak of a draft opinion alluded to the court potentially overturning abortion rights, concerns have grown over whether justices could next move to reverse other decisions that rely on the “right to privacy” that the court outlined in the Roe v. Wade decision legalizing abortion nationwide nearly 50 years ago.
The leaked opinion authored by Justice Samuel Alito, a member of the court’s 6-3 conservative majority, explicitly says the decision concerns abortion and no other rights.
But legal experts have speculated that similar logic could be used to reverse other decisions, including Obergefell v. Hodges, the 2015 case in which the court ruled same-sex marriage bans unconstitutional.
“We need states across this country to say, ‘We see you. You exist. You deserve respect. And you deserve protections, because your relationship is no different than any other,’” said Jim Obergefell, the plaintiff in the landmark case, who is now a Democratic candidate trying to become an Ohio state lawmaker.
Before the Supreme Court struck down bans and legalized same-sex marriage, 31 states had enacted laws banning same-sex couples from marrying. The laws have not been in effect since courts ruled them unconstitutional, but they remain on the books in most of those states.
For years they were considered defunct and attracted little attention, but the shifting composition of the Supreme Court has led several states to remove them from their statutes and constitutions. Virginia and Nevada repealed their defunct bans in 2020 and New Jersey codified marriage rights for same-sex couples in 2021.
“We should all be worried about our other fundamental rights that have been obtained through the courts over the last decade or so,” said Utah state Sen. Derek Kitchen, a Democrat and the state’s only LGBTQ lawmaker, on the steps of the statehouse on Tuesday.
Kitchen and New Jersey Assemblyman Don Guardian, a Republican, want more states to remove the same-sex marriage bans from their laws and codify rights for LGBTQ couples to prepare for a worst-case scenario in which the Supreme Court decides to overturn the 2015 same-sex marriage decision.
“I would very concerned for any state that doesn’t take up the same type of legislation now before the court rules (on abortion) so they can protect their LGBTQ+ residents that have gotten married,” said Guardian, who is gay.
Though the New Jersey law passed with bipartisan support, similar moves to codify same-sex marriage rights could face uphill battles in Republican-led legislatures that have begun to revisit LGBTQ issues with newfound zeal.
Some have moved to limit LGBTQ subject matter from school curriculums and regulate healthcare for transgender youth. At least a dozen, including Utah, have passed laws limiting participation in sports for transgender youth.
Kitchen likened the state same-sex marriage bans to “trigger laws” that many Republican-led states have enacted to prepare for a scenario in which Roe v. Wade is overturned and states can resume limiting abortions.
Kitchen hasn't talked to the Republicans who lead the Utah Legislature, but said he's optimistic same-sex marriage has been embraced widely enough in Utah that codifying protections for LGBTQ couples will win widespread support.
“Utah is a family friendly state. We support families we know how important it is to provide stable units for children to grow,” he said.
Kitchen added: “We have already decided as a community that marriage equality is a value that we care about. So yes, this is something that does have a chance of passing in Utah.”