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Next Justice Could Change Supreme Court Views Of Same-Sex Marriage


President Trump's replacement for Supreme Court Justice Anthony Kennedy could change how the court views same-sex marriage. In 2015, Justice Kennedy wrote the majority opinion in Obergefell v. Hodges that the Constitution protects the right to marry for same-sex couples across the country. He argued that these couples did not diminish the idea of marriage.

ANTHONY KENNEDY: Their plea is that they do respect it. They respect it so deeply, they seek to find its fulfillment for themselves. They ask for equal dignity in the eyes of the law, and the Constitution grants them that right.

KING: Attorney Maureen Holland argued the winning side of that case. She joined me from member station WKNO in Memphis, Tenn. And I asked if she thinks that landmark ruling could be reversed.

MAUREEN HOLLAND: I don't think that the Obergefell decision will be overturned - under a legal concept known as stare decisis, which is once we've made a decision, we're going to follow that decision. And so I would expect the next Supreme Court to follow this decision. That doesn't mean that there aren't going to be challenges to what Justice Kennedy has called the constellation of benefits to same-sex couples.

KING: What's included in that?

HOLLAND: Well, every and all benefit a same-sex couple would have that would be equal to an opposite-sex couple - the benefits of being able to hold property in a special way if you're married, the benefit of having your name on a birth certificate, the benefit of being able to go to the hospital and see your loved one when they are having medical procedures.

KING: So this new Supreme Court will be in the position of deciding these smaller issues - what falls under the category of marriage?

HOLLAND: Yes. And it's actually a very big issue since job is part of that question.

KING: What do you mean, job?

HOLLAND: Right now the Supreme Court has not decided whether or not you can be fired immediately upon announcing to your employer that you have just married a same-sex spouse. We have decisions in some circuits that say, no, there is no currently federal protection for a same-sex married couple. And there are other circuits who have decided that you do have protections. But the Supreme Court hasn't decided.

KING: In 2015, when the Obergefell decision was handed down, you talked in interviews about a kind of forward momentum for the LGBTQ community. Where do you think that forward momentum stands today?

HOLLAND: It's a little slower with the pushback by the administration in terms of reversing President Obama's executive orders as it relates to the LGBT community, including the service members who are transgender - their equal treatment and the opening of the military to transgender individuals.

KING: You're a member of the LGBTQ community. When you heard that Justice Kennedy was retiring, how did you feel?

HOLLAND: I personally was very concerned, very worried because, certainly, the decision by Justice Kennedy, the Obergefell decision allowed me in my marriage in Tennessee to be recognized in Tennessee for the first time. And his replacement will impact whatever constellation of marital benefits I receive. So it's an extremely important decision that needs to be made.

KING: Maureen Holland, thank you so much.

HOLLAND: Thank you so much.


KING: Maureen Holland is a civil rights lawyer in Memphis, Tenn. Transcript provided by NPR, Copyright NPR.

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