Democrats Just Forced Every House Republican to Take a Stance on Marriage Equality

His reassurances were considerably undercut by his colleague Justice Clarence Thomas, who agreed with Alito’s description of the ruling in Dobbs and then went on to say that, yes, the court should “reconsider” Obergefell, Lawrence, Griswold, and certain other Supreme Court precedents on Americans’ unenumerated rights. A host of Republican senators and state officials have also renewed their criticism of those decisions in recent months, particularly Obergefell. While it’s unclear if there would be five votes on the court to overturn those precedents at the moment, those who support them cannot help but worry that the court’s reenergized conservative bloc will take aim at them next.

There is only so much that Congress can do if the Supreme Court eventually overturns Obergefell, however. While the White House said the Respect for Marriage Act would “secure marriage equality in the United States,” Congress can only address federal recognition of same-sex marriages. Marriage licenses themselves are governed by state law. A gay couple in Texas, for example, would likely still find themselves unable to obtain a license without Obergefell no matter what Congress does. By comparison, a gay couple in Massachusetts would still be able to get a license and also no longer have to worry that prevailing federal law would revert to the 1996 status quo in a post-Obergefell world. (DOMA was partially struck down in United States v. Windsor in 2012, but it’s unclear whether that decision would also automatically be imperiled if the court overturned Obergefell.)

There are not enough votes in either chamber of Congress for court-packing or other structural reforms to the Supreme Court, so in practical terms, Congress cannot prevent five justices from overturning Obergefell or other major precedents. (Again, whether they will choose to do it is still an open question.) But what Congress can do is take affirmative steps to protect those who would be affected by the high court’s reactionary turn—and force Republican lawmakers to show voters whether they will undermine those rights once in power. The conservative justices may not be up for reelection in November, but the party that put them in office will be.