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The Supreme Court Won’t Protect Same-Sex Marriage. Here’s What Will.

Is Obergefell getting axed on your fascist hellscape bingo card? It’s time to fight for a failsafe — like Nevada is doing right now

Every day until the election, we’re introducing you to one character or issue whose fate centers around the political state of sex and gender. We’ll discover which freedoms are at stake, what battles are being fought and what sex in a free country really looks like, all in honor of unfucking a system that seems increasingly hellbent on fucking up fucking. Welcome, everybody, to UnFuck America.

When I married my wife in a Florida courthouse in 2016, same-sex marriage was so new that our officiant started reciting the script for an opposite-sex wedding out of habit before catching himself and starting again. That was only a year after marriage equality passed in the Supreme Court so we laughed it off, but even four years after our wedding day, our right to marry still feels as new to us as it did to him. Things that have been around as long as nationwide same-sex marriage include the Apple Watch, the CW show Supergirl and the Taco Bell Quesarito (R.I.P.), so given the fact that newly minted Supreme Court Justice Amy Coney Barrett seems unwilling to openly affirm any civil rights granted after school desegregation and interracial marriage, I’m not feeling optimistic about her approach to a five-year-old decision about my right to marry the woman I love.

But maybe that’s just as well — we probably shouldn’t be pinning our hopes for a bright queer future on a group of robe-wearing private-school weirdos who are mostly older than the home microwave and can’t remember the last time they left the Acela Corridor. If it wasn’t clear before, it’s crystal clear now: The Supreme Court isn’t going to save LGBTQ people, and now that ACB has deepened the Court’s conservative majority, it’s time for states to start installing failsafes to preserve rights like same-sex marriage.

That’s exactly what voters in Nevada are hoping to do this November. On the Silver State’s election slate this cycle is a ballot question — Question 2 — that would remove language from a 2002 amendment to the state’s constitution defining marriage as being exclusively between a man and a woman. Getting that language out of the Nevada constitution is vital. If the Supreme Court were to follow up on threats to repeal Obergefell v. Hodges — the 2015 case that granted marriage equality — it would send the issue back to the states. But if Nevada’s heterosexual definition of marriage is removed, same-sex marriage would remain legal there.

Right now, Nevada’s existing prohibition on same-sex marriage is unenforceable, as are the many similar state-level bans that spread like wildfire during the Dubya era when America decided the best way to fight terrorism was to stop gay people from eating bad cake and doing the Electric Slide. If Obergefell remains in place, Nevada could leave that archaic language in its state constitution forever and quickie gay weddings at the Little White Chapel could continue unabated.

But “if” isn’t good enough for me and the more than 1 million LGBTQ Americans who have already tied the knot. It’s unlikely that any of our marriages would be reversed — California’s Proposition 8 didn’t undo same-sex marriages that had already taken place before it was passed — but who knows what some states might do in the absence of Obergefell? And what about a generation of young LGBTQ people who would have to watch their rights go backward instead of forward, dealing with same-sex marriage bans that their elders worked so hard to combat?

Indeed, if there’s one thing we all should have learned from the last four years, it’s that worst-case scenarios can and do happen (in case you haven’t noticed, we currently have a Home Alone 2 extra as president).

Maybe it’s just because I love my gay wife so much, but I’m genuinely worried there’s more than an outside chance of Obergefell being overturned outright, in ways that prove to be tremendously disruptive to LGBTQ life in this country. Barrett, who in a 2016 address seemed to compliment the dissent in the Obergefell decision, ended up calling the ruling itself an “important precedent” during her confirmation hearing earlier this month but fell short of saying that she considered it to be untouchable, saying only that she thought it was unlikely that a challenge to Obergefell would ever make it up to the Supreme Court. But unlikely doesn’t mean impossible — and earlier this month, Justices Clarence Thomas and Samuel Alito wrote a dissent in which they made it clear they’re both still grumpy about gay weddings, so it’s clear that there’s still some appetite at SCOTUS to fuck with queer folks.

That’s why Jim Obergefell himself worried in a Washington Post op-ed about the Court deciding to “revisit” marriage equality. Of course, other kinds of homophobic and transphobic judicial attacks are far more likely: SCOTUS could go after transgender rights or same-sex adoption. But Obergefell getting axed is still on my fascist hellscape bingo card, which is why it’s encouraging to see Nevada, for one, taking a step to prepare for this particular worst-case scenario. This is the first time, as the Associated Press noted, that a state’s voters are going to consider removing a same-sex marriage ban from its constitution — but if Question 2 succeeds, there will still be 29 such bans remaining around the country.

That’s 29 states where the same-sex marriage landscape could get very complicated if something were to happen to Obergefell. As the state senator who paved the way for Nevada’s ballot question told the AP, he likes to hit back at people who accuse him of pursuing a purely ceremonial change: “I’ve always countered by telling them that if something were to change in the Supreme Court, then we would be back to what’s currently in the [Nevada] Constitution.” (This is similar to the situation with Roe v. Wade in which a sudden overturning would mean a bunch of states will essentially revert to their pre-1973 condition, with some states even having new abortion bans that would go into effect. We’d go straight to a messy patchwork of protections, basically overnight.)

So although Obergefell could very well stand the test of time — even if Republican presidents keep nominating judges who have been all but incubated in an underground lab by a secret conservative judicial society — its overturning is so stressful to consider that it’s worth taking out some insurance policies, like Nevada’s ballot question would. Justice Stephen Breyer is 82 years old, Trump could still ride his steroid high straight into a second term via an Electoral College victory, and his next court pick could team up with Thomas, Alito, Kavanaugh and Barrett to try to turn our country’s queer clock back to the Stonewall era.

And if you’re sitting here shaking your head at the thought of a rogues’ gallery like Thomas, Alito, Kavanaugh and Barrett holding the fate of queer America in their hands, well, it just goes to show that believing in SCOTUS in the first place was a bit of a trap. Obergefell was monumental. Bostock this year was arguably even more important, making employment discrimination against LGBTQ people illegal. But the state-level organizing that’s been transforming the legislative landscape for LGBTQ folks all across America has always been most important because it will be more lasting and less intractable. For decades, conservative Supreme Court justices’ go-to method for slowing down or undoing civil rights progress has been to cry “states’ rights.” (That was the rationale behind the 2013 Shelby County v. Holder decision, for example, which reversed parts of the 1965 Voting Rights Act, allowing states to pass the nightmarish voting restrictions we’re seeing today without federal approval.) But if the states all legally affirm LGBTQ people, that argument would be rendered useless in this case.

Which would be far preferable to the current situation, where a single octogenarian like Ruth Bader Ginsburg can die and suddenly we’re in civil rights freefall, guessing whether or not same-sex marriage or birth control will be legal next year. At the state and local level, LGBTQ activists can continue banning the harmful practice of conversion therapy, passing nondiscrimination ordinances and taking archaic laws off the books like Nevada’s hopefully going to do, all without their successes hinging on the health of judges in D.C. who insist on working well beyond the average U.S. lifespan. That incremental, granular work is what really matters, despite our fetish for those big sweeping dramatic SCOTUS decisions. SCOTUS may have made it legal for me to marry my gay wife so we could have gay cats together, but it’s the work of the people that’s going to keep that right in place.

In a way, that’s only fitting: Ultimately, each ounce of queer happiness in this country is more sacred than an aging institution that’s at risk of becoming its own miniature super-legislature of Georgetown Prep graduates. Let the illusion of SCOTUS as an engine of queer progress be shattered if it must. The sooner we stop looking to it for salvation, the better.

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