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Despite Supreme Court Ruling, States Challenge Marriage Equality

With almost two-thirds of the state legislatures in the country under GOP control, a ratified constitutional amendment is a possibility, although a long shot.

The celebration in front of the United States Supreme Court upon the announcement of the Court's decision in Obergefell v. Hodges that same-sex marriage is a constitutional right under the 14th Amendment, June 26, 2015. (Photo: Matt Popovich /Flickr)

On June 26th, 2015, the Supreme Court ruled in Obergefell v. Hodges that all Americans — regardless of their gender — had the right to marry a person of their choosing. Marriage equality activists celebrated. Religious conservatives bemoaned the end of “traditional” marriage. And overall, it seemed as if the battle could be put to rest for good.

Not so fast, says the religious right.

Now, less than two years after the 5-4 ruling, social conservatives are desperately clambering for a second go at the court system. Republicans are in charge of the Congress and White House, and while far right conservative Justice Antonin Scalia is deceased, the new Republican president has nominated another judge — Neil Gorsuch — to take his place, claiming Gorsuch is made in Scalia’s mold.

A mini-Scalia wouldn’t change the court makeup that ruled in favor of marriage equality in 2015, but conservatives are hopeful that the retirement or death of a liberal justice could set them to move the court to the right for decades to come. Add in the likelihood that President Donald Trump will be extending so-called “religious liberty protections” through his new administration, and it isn’t quite as surprising that the religious right doesn’t consider this a settled issue.

And a new swing for a court challenge is definitely underway. According to the Huffington Post, Tennessee lawmakers have introduced “The Natural Marriage Defense Act,” which they claim would allow the state to reject recognizing same-sex marriage as legal marriages, regardless of what any court rules.

Sponsor and Republican state Rep. Mark Pody said in 2015 on the issue of marriage equality that, “I believe I’m supposed to be speaking to the unsaved, to the people that are performing same-sex marriages, to the people involved in same-sex marriage, it is wicked, it is wrong and I am doing the best I can to warn them.”

A similar bill was introduced in 2016 but never made it to a vote. That could change this year, now that elections are over and Republican are in control of the federal government, making state lawmakers more comfortable about writing and enacting blatantly unconstitutional state legislation.

Tennessee isn’t alone, either.

“Republican Senator Jason Rapert filed the bill, Senate Joint Resolution 7, earlier this month that would prohibit states from accepting any definition of marriage ‘except as the union of one man and one woman, and no other union shall be recognized with legal incidents thereof within the United States or any place subject to their jurisdiction,'” reports LBGTQ Nation, with the press conference ironically enough being held on Valentine’s Day.

Rapert’s hope is to get states to band together to draft and eventually ratify a federal constitutional amendment on the issue, in the hopes of permanently enshrining marriage as only between one man and one woman in the U.S. Constitution. That change would be the only way to officially overrule the Supreme Court’s decision.

With almost exactly two-thirds of the state legislatures in the country under GOP control, a ratified constitutional amendment is a possibility, although a long shot. Unlike abortion, elected Republican officials still have a spread of opinions when it comes to marriage equality, and getting every Republican state in line to enshrine bigotry into the Constitution seems like a longshot. Even the President himself has gone back and forth on the issue — at one point saying he supports “traditional” marriage, at another saying it doesn’t matter since the Supreme Court already ruled, and at yet another calling himself a “friend” to the LGBTQ community.

When the U.S. Senate does begin questioning Gorsuch during his nomination hearings, it is clear that despite any claims of settled law, his views on the Obergefell ruling will have to be probed. Because right now this may just be a rogue state or two trying to turn back the clock on marriage rights, but odds are they aren’t the last to try it.

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