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Could Republicans Undo Marriage Equality? Yes -- And Here's How

It's a three-step program that's already underway.

12/19/2016 01:04 pm ET | Updated Dec 19, 2016

The National Organization for Marriage says that now Donald’s president, they have a plan to undo marriage equality. But can they do that? Is marriage equality really at risk?

Yeah. Yeah it is. In fact, ever since the Supreme Court granted nationwide marriage equality, a handful of our old friends have been exploring ways that they could weaken or roll back those rights. And now that Republicans control the federal government, they can set those plans in motion. Here’s how they could do it in just three steps.

Step 1 is simply to weaken the protections of marriage. They can’t stop marriage altogether, not at first. But in a variety of states, there are subtler efforts already underway.

For example, the Arkansas Supreme Court just gave the state the green light to withhold certain rights from same-sex married couples. In that case, it was the right to have both parents named on their kid’s birth certificate. The court said that straight couples can automatically be listed as parents, even if one isn’t biologically related to the child. But gay couples can’t.

There isn’t even a pretense here of separate but equal. It’s explicitly separate and unequal.

And take a look at what’s happening in Texas: there’s a group of citizens suing to stop Houston from providing spousal benefits like health insurance to the same-sex spouses of city employees. This group says that even though the state has to issue a marriage license, it doesn’t have to go further and treat the couple as though they’re married. There’s also a bill called SB89 that goes even further ― it says that the Texas constitution, which prohibits same-sex marriage, trumps the US Constitution, so the state shouldn’t issue any licenses to same-sex couples at all.

Rulings and laws like these are popping up all over the country, and it seems like they ought to be unconstitutional, right? Well, they probably are. But that’s going to be up to the US Supreme Court to decide, and guess who’s going to be nominating the next Supreme Court justices.

That gets us to step 2: Strategically appointing Republicans in key positions. Among Donald’s picks to fill seats on the Supreme Court: Bill Pryor, a judge who has spoke in favor of letting states arrest gay people for having sex in the privacy of their own homes.

And this step isn’t only about the Supreme Court. Donald’s pick for the Department of Justice is Jeff Sessions, who a decade ago tried to amend the US Constitution to stop gays from marrying. If he becomes Attorney General, Jeff Sessions could ask the Supreme Court to overturn marriage equality on behalf of the US government ― that carries a ton of weight. And we’d only need two justices like Bill Pryor for the court to say “okay.”

But wait, Jeff Sessions can’t show up at the Supreme Court whenever he feels like it. He’d need a lawsuit, some kind of legal conflict, in order to make an argument. Well, remember those weirdly unconstitutional laws and rulings happening at the state level? In a lot of those cases, the only way to resolve them is to bring them to the US Supreme Court.

And that brings us to Step Three. The opponents of marriage equality have set up constitutional conflicts in the states. Nationally, they’ve installed allies in the courts and at the Department of Justice. And now, they’ll have an excellent shot at using those conflicts and those officials to overturn marriage.

It would be very weird if the Supreme Court reversed the marriage decision after just a few years. But very weird things have been happening lately. And even if this strategy doesn’t work, don’t worry ― they’ve got a backup plan. It’s called the First Amendment Defense Act, and it wouldn’t let the government undo your marriage ― it would let random strangers undo your marriage.

It does that by granting all people ― which, remember, includes corporations now ― the right to decide that they will not honor your marriage license. So you can get married, but then your insurance could refuse to extend coverage to your spouse. If you need time off to care for your sick partner, your boss can say, “no, I don’t think you’re married.” And if you think taxes are complicated now, wait until you have no idea whether some official at the IRS will insist that you’re still single.

So even if the Supreme Court isn’t ready to overturn marriage yet, the First Amendment Defense Act will serve as a little lawsuit-engine, generating constitutional conflicts for years to come ― until the right case to overturn marriage comes along.

And until then, you’ll still be able to get married. But marriage won’t mean what it once did. Marriage once meant that you’d get a whole suite of rights and protections. But soon it could mean that you’ll have no idea when those rights might just disappear. Marriage will constantly change depending on where you go, and who you’re talking to.

In other words: the Republican plan is to redefine marriage.

If you want to know more about the sneaky attempts to undermine equality in the states, check out my video about the Phantom Roadmap to LGBT Discrimination. And check out this video about how Republicans hide discrimination in “religious freedom” bills. You can watch those and a bunch more on my YouTube channel, and subscribe to get more videos like this. Let me know your thoughts in the comments and @mattbaume on Twitter.

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