Ten years ago today, the Supreme Court legalized same-sex marriage in a landmark 5-4 ruling that changed the course of U.S. history. Fordham Law Professor Ethan J. Leib told FOX News Digital about that he wouldn’t be surprised to see someone challenge Obergefell v. Hodges, pointing to the Court’s recent decision in U.S. v. Skrmetti.
Skrmetti was one of the most closely watched cases of the Supreme Court’s term, and advocates for LGBTQ+ organizations such as the ACLU and Lamda Legal, which argued the case in December, have cited fears that the decision could serve as a legal pretext for future cases involving LGBTQ+ protections — including whether sexual orientation qualifies as a “protected class” on par with race or national origin.
“I wouldn’t be surprised if somebody tried to unwind marriage equality,” Ethan J. Leib, a professor at Fordham Law, told Fox News Digital in an interview following the court’s decision last week.
He noted that the justices who joined John Roberts in the majority opinion — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — “seemed like they did not want to decide whether trans people are a quasi-suspect classification.”
“My guess is that, if they get another case that’s really about transgender adults,” they might be willing to see the “technical differences” between them — which he said could carve out room for the justices to distinguish themselves from other conservatives on the court.
He also noted Roberts seemingly went to great lengths to determine what counts as a sex classification, which could ultimately make it “much harder” for them to undo Obergefell in the near-term.
At the end of the day, Leib said, “I wouldn’t be surprised if someone tried to unwind marriage equality” and the protections provided under federal law.
“I think I’d be surprised if there were five votes for it,” he said of securing the majority votes to overturn Obergefell. “But you know, but I could, I could see a way of counting to five.”