Ask The Lawyer-Supreme Court under Trump Administration?

This week’s question:

QUESTION: My partner and I were planning to marry in August 2017. Because of the election, we are worried that a conservative Supreme Court will reverse the decision recognizing gay marriage equality. What should we do?

ANSWER: Go ahead, get married, plan your family – don’t let politics get in the way of your future. Fears of a conservative repeal of civil rights are probably exaggerated.

During the campaign, both Democrats and Republicans claimed that election of the other party’s candidate would result in a Supreme Court that tilted dangerously liberal or conservative, a Court that would quickly overrule established precedent on the right to bear arms, abortion rights, or the right of same sex couples to marry.

Those fears were overstated. No matter which candidate won, the Supreme Court would be reluctant to reverse its previous decisions. And, where a case has been decided on Constitutional grounds, the legislature cannot step in with a new law to overrule the Court’s decision. The only way the government can legalize action the Supreme Court has found to be unconstitutional is to amend the Constitution itself – a process that cannot be done by the government alone.

Will the Supreme Court overrule its earlier decisions?

The Supreme Court cannot simply decide to reverse an earlier decision because the balance on the Court has shifted. It can only make a decision reversing or qualifying precedent if that decision is challenged in a case or controversy presented to it for review; decisions cannot be overruled because of a change of heart or opinion. Cases challenging a Supreme Court decision must work their way up through the courts, a process that may take several years. And, even when a case that clearly challenges existing law reaches the Supreme Court, the Court is generally unwilling to reverse established precedent. When precedent is reversed, it is usually in the direction of expanding rights, not limiting them.

In its 1992 decision in Planned Parenthood v Casey, 505 U.S. 833 (1992), the Supreme Court said that no judicial system would work “if it eyed each issue afresh in every case that raised it.” A respect for precedent, the Court said is “indispensable.” That said, the Court recognized cases might arise in which a prior judicial ruling should come to be seen “so clearly as error that its enforcement was … doomed.”

The Court listed four factors it would consider when deciding whether its prior decision should be reversed:

1) Was the rule unworkable?

2) Would overruling the rule result in special hardship and be unfair to those who had relied on it?

3) Have other laws changed so much since the precedent was decided that the rule it announced is now outdated?

4) Has our understanding of the facts underpinning a decision changed, or come to be seen so differently, that the former rule can no longer be justified?

The Supreme Court analyzed Roe v Wade using these criteria in the 1992 Casey decision. First, it found that the rule set by Roe v Wade was workable. Second, the Court stated reversing Roe would result in inequity: In the almost 20 years since Roe was decided, people had “organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion in the event that contraception should fail.” Third, the legal reasoning underpinning of the Roe decision had not eroded. Finally, while the age of fetal viability had changed since Roe was decided in 1973, the essential facts supporting the decision as a whole had not.

In 1992, almost 20 years after Roe, the evidence showed that a fetus could be viable outside the womb as early as 23 weeks. As a result of this factual development, the Casey Court partially rejected Roe’s holding that abortion could not be regulated until the third trimester of pregnancy. The Casey Court held instead that the state could ban abortion at the point of fetal viability, whenever that occurred. The Casey Court chipped away at the breadth of the Roe decision but left it largely intact.

Before Justice Antonin Scalia passed away in February this year, five of the nine Supreme Court justices were conservative. And, even with that majority, the Court declined to overrule Roe.

The Court’s 5-4 decision in the 2015 “gay marriage case” — Obergefell v Hodges — is also unlikely to be overruled, even if, after the appointment of a ninth justice, conservative justices will now be in the majority. The fact is, thousands of people have married in reliance on the opinion, decided to have or adopt children on the basis of those marriages, and made economic decisions based on those marriages. The law itself is not unworkable – it has, in fact, worked fairly well, ensuring consistency of marital status across state lines (at the time the case was decided, 11 states allowed same sex couples to marry). The legal underpinnings of the decision have not become outmoded; the majority followed a line of cases expanding privacy and due process rights. Finally, the facts supporting the decision have not become outdated; in fact, 23 countries now allow same sex marriages, including Canada and the countries of the United Kingdom.

On the other hand, Conservative alarm at the impact a Clinton-appointed Supreme Court might have had on the decisions construing rights under the Second Amendment was also unwarranted. Had Hillary Clinton won the election, Supreme Court decisions in 2008 and 2010 upholding an individual’s right to bear arms, or, more specifically, to purchase a handgun for self-defense, were unlikely, under the Casey criteria, to be reversed. The biggest threats to those decisions – McDonald v Chicago and District of Columbia v Heller – illustrate the fourth of the four factors outlined in Casey. As the number of mass shootings increases, and the threat of terrorist activity rises, the facts supporting the “handgun rights” decisions may be called into question. However, at present, any such questioning is unlikely to result in a reversal of the decisions under a conservative majority.

Constitutional Amendments?

Where the Supreme Court and the legislature are unwilling or unable to reverse a decision, the constitutional right on which the decision is based can be changed – by amending the U.S. Constitution. This has not been done often. The last amendment to the Constitution, the 27th Amendment, was in 1992. That Amendment delayed laws affecting Congressional salary from taking effect until after the next election of representatives. The amendment was originally proposed in 1789. The 26th Amendment, giving 18-year-olds the right to vote, was passed in 1971.

To amend the Constitution, two thirds of the House and Senate must approve the proposal and send it to the states. Three-fourths of the states must ratify the proposed amendment through a vote of the electorate.

Although polls of public opinion, as we have learned, can not only be wrong, but also dead wrong, a 2016 report by the Pew Research Center showed that 55 percent of Americans support same-sex marriage while only 37 percent oppose it. Views on abortion are closer. Because roughly 60 percent of the public favor allowing legal abortions while about 40 percent oppose them, it is unlikely that a Constitutional amendment would pass, although the question might be close. In contrast, the overwhelming majority of Americans support campaign finance reform – 85 percent according to a June 2015 New York Times poll. If a Constitutional Amendment placing limits on political speech were proposed, public support for overruling the Supreme Court’s decision in Citizens United might be found. Congressional support to overrule Citizens United, however, given Congressional self-interest in being re-elected, is less likely.

The bottom line

The bottom line is that supporters of both candidates for President overstated the threat to liberal or conservative positions espoused by the other camp: Overruling a Supreme Court decision, while possible, is not quick or easy.

So, to answer your question – marriage equality is not doomed. Go ahead, book the reception, buy the cake, and plan your honeymoon! Congratulations and best wishes to you and your partner from all of us at GWINN TAURIAINEN PLLC.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan.

By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
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