Another Sign That SCOTUS Isn’t Going To Snatch Back The Freedom To Marry

Walter Olson

Those who predict the Supreme Court has set out on a path to overturn Obergefell, the same‐​sex marriage case, lately pointed to the Indiana birth‐​certificate case Box v. Henderson as a key domino they expected to fall. The case “could begin the rollback of marriage equality,” claimed a headline at Slate; legal correspondent Mark Joseph Stern wrote that it could even “turn [gay parents] into legal strangers to their own kids.” At LGBTQ Nation, Bil Browning warned that the “newly conservative court waited until far‐​right Justice Amy Coney Barrett was confirmed” before considering the case. But in this morning’s orders the Court denied certiorari in Box, with no dissents noted. 

There had been much speculation about salami‐​slice rollbacks of Obergefell given Justices Samuel Alito and Clarence Thomas’s loudly voiced discontents at the start of this term on that case’s intersection with religious liberty, as well as the recent addition of Justice Amy Coney Barrett. I have taken the view that even with religious liberty doctrine in considerable flux at the Court, as it is in the foster‐​care‐​access case Fulton v. Philadelphia that the Court is now considering, the core freedom to marry announced in Obergefell itself is not in jeopardy.

Last month Mark Joseph Stern wrote in Slate of Box v. Henderson: “If the majority wants to begin eroding Obergefell, they will probably start here.” I agree, and conclude that today’s denial means the present Court doesn’t want to do that.