Former Secretary of State Hillary Clinton is warning that during its next session, which begins Oct. 6, the Supreme Court could do to same-sex marriage what it did to abortion: let the states decide.
“American voters, and to some extent the American media, don’t understand how many years the Republicans have been working in order to get us to this point,” Clinton said, The Hill reported Tuesday, citing an interview she gave Friday on the “Raging Moderates” podcast. “It took 50 years to overturn Roe v. Wade. The Supreme Court will hear a case about gay marriage; my prediction is they will do to gay marriage what they did to abortion — they will send it back to the states.
“Anybody in a committed relationship out there in the LGBTQ community, you ought to consider getting married because I don’t think they’ll undo existing marriages, but I fear they will undo the national right.”
Kim Davis, the former Kentucky county clerk who was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple on religious grounds, is appealing a $100,000 jury verdict for emotional damages plus $260,000 for attorneys fees. In a petition for a writ of certiorari filed last month, Davis argued First Amendment protection for free exercise of religion immunizes her from personal liability for the denial of marriage licenses.
She also claimed the high court’s decision in Obergefell v. Hodges that extended marriage rights for same-sex couples under the 14th Amendment’s due process protections was “egregiously wrong.” Davis’ attorney wrote in the brief that Justice Anthony Kennedy’s majority opinion was “legal fiction” and “the mistake must be corrected.” The Supreme Court has yet to decide whether it will take the case.
Justice Clarence Thomas argued in his dissent in Obergfell that the judiciary should not create new rights not explicitly grounded in the Constitution, suggesting that decisions like Obergefell reflect judicial overreach. In Dobbs v. Jackson Women’s Health Organization, the 2022 ruling that ended the federal right to abortion, Thomas explicitly urged the court to reconsider precedents relying on substantive due process, including Obergefell, to correct what he saw as constitutional errors.
But even if the Supreme Court heard Davis’ case and ended up overturning Obergefell, same-sex marriage rights would still be protected by the Respect for Marriage Act, a bipartisan measure passed by Congress and signed by then President Joe Biden in 2022. The law guarantees recognition of same-sex marriages nationwide, but if Obergefell were overturned, state bans could block new licenses even as existing marriages remain valid.
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