- An attorney behind the case that legalized gay marriage said it would be tough to roll it back.
- The hundreds of thousands of wedded same-sex couples in the US would make it hard, Douglas Hallward-Driemeier said.
- Fears were sparked about the future of LGBTQ rights after the leaked Roe v. Wade Supreme Court draft opinion.
An attorney behind the historic 2015 case that legalized gay marriage nationwide said the hundreds of thousands of wedded same-sex couples in the United States would make it tough for the Supreme Court to ever roll back marriage equality.
Douglas Hallward-Driemeier, one of the lawyers who won the landmark Obergefell v. Hodges case, told Insider this week that the leaked Supreme Court draft opinion overturning the 1973 Roe v. Wade decision should worry LGBTQ advocates, but said: "We should be careful not to assume that Obergefell would be on the chopping block."
The lawyer said that the sheer number of already married same-sex couples in the US would "make it very difficult to unwind" the decision in the Obergefell v. Hodges case, which legalized same-sex marriages in the country.
"The reliance interests of already married same-sex couples are extremely powerful and would be an enormous obstacle, both practical and legal, to any attempt to undue Obergefell," Hallward-Driemeier said.
According to the US Census Bureau's 2019 American Community Survey, there were an estimated 980,000 same-sex couple households in the US, and about 58% of those couples — or more than 560,000 — were married.
"Certainly any individual couple who is married, is not going to have their marriage nullified by any decision whatever would happen," said Hallward-Driemeier.
Fears were quickly sparked about the future of LGBTQ rights in America following Monday's bombshell news that a draft opinion showed that the conservative-majority Supreme Court is poised to overturn the 1973 Roe v. Wade decision that established a woman's constitutional right to abortion.
And legal experts told Insider that the draft opinion overturning Roe v. Wade lays a "roadmap" to potentially strike down other rights such as gay marriage.
"Obergefell forcefully rejected an approach to evaluating fundamental rights that focuses too narrowly on 'specific historical practices,' noting that 'if rights were defined by those who exercised them in the past,' then past discrimination would serve as its 'own continued justification and new groups could not invoke rights once denied,'" Hallward-Driemeier said.
He added that the draft opinion on Roe v. Wade, if finalized, "would represent an unfortunate reversion to fundamental rights that would only protect those who have been historically privileged."
Unlike Roe, the Obergefell decision in part "rests on a fundamental right to marry" and that right is one that even Obergefell dissenters recognized, according to Hallward-Driemeier.
"Obergefell is an extension of a long-recognized, fundamental right to marry," Hallward-Driemeier said. "If you're going to overturn Obergefell, you have to perhaps overturn a bunch of decisions on which heterosexual couples have relied on as well."
Still, Hallward-Driemeier said, advocates are "justifiably worried" about the potential rolling back of the 2015 ruling based on the Supreme Court's Roe v. Wade draft opinion written by Justice Samuel Alito.
Additionally, gay couples preparing to get married "should not hesitate for a second" to tie the knot despite fears of losing marriage equality," said Hallward-Driemeier.
"They should get married and they should build their families. And should not in the slightest allow this draft to keep them from living their full lives," the attorney said. "Further enshrining full marriage equality in the fabric of our society will provide even greater protection to the rights recognized in Obergefell."