Could ‘zombie laws’ be used to strip LGBTQ+ people of their rights – including same-sex marriage?
Jim Obergefell holds a photo of him and his late husband John Arthur in his condo in Cincinnati, on April 2, 2015. (Maddie McGarvey/For The Washington Post via Getty Images)
After Arizona revived an old, 1800s ‘zombie law’ to ban abortion in the state, there is a concern that the same tactic might be used to strip LGBTQ+ people of their rights if crucial Supreme Court decisions are overturned.
Obergefell v. Hodges is a landmark, 2015 decision of the Supreme Court of the United States, which ruled that the fundamental right to marry is guaranteed to same-sex couples. Similarly, Lawrence v. Texas is another vital decision which decriminalised gay sex.
On Tuesday, the Arizona Supreme Court gave the go-ahead to enforce an old law that bans nearly all abortions, providing no exceptions for rape or incest and only allows abortions if the mother’s life is in danger.
The law dates back to 1864, and suggests that doctors could be prosecuted for providing abortions, throwing out an earlier lower-court decision that exempted doctors from being charged or prosecuted for performing abortions in the first 15 weeks of pregnancy.
The 1864 law only applies to Arizona and was therefore blocked by the country-wide Supreme Court decision in 1973 that granted the constitutional right to abortion – a decision known as Roe v. Wade.
Unfortunately, after Roe v. Wade was overturned in 2022, the barrier blocking the 1864 abortion ban was lifted.
What are ‘zombie laws’?
These so-called ‘zombie laws’ exist in almost every state – they have never been repealed but instead were either invalidated or superseded by other laws or higher-court decisions.
Like with Roe v. Wade, which invalidated old laws criminalising abortion, the Supreme Court decision that granted same-sex marriage equality nationwide – Obergefell v. Hodges – could be overturned in the future, as could other pro-LGBTQ+ civil rights decisions, allowing the resurrection of other ‘zombie laws’ and making certain states worse places to live for LGBTQ+ people.
Take, for example, Supreme Court decision Lawrence v. Texas in 2003, which basically ended the criminal punishment of private, consensual non-procreative adult sexual activities: i.e. anti-sodomy laws.
As of October 1, 2023, 12 US states still had statutes criminalising consensual sodomy: Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, and Texas. These statutes penalties are not enforceable due to the binding precedent of Lawrence v. Texas.
If Lawrence v. Texas is overturned, these ‘zombie laws’ could become enforceable once more.
What is Obergefell v. Hodges?
Obergefell v. Hodges was the legal case where the U.S Supreme Court ruled that state bans on recognising same-sex marriage was unconstitutional.
Two individuals, James Obergefell and John Arthur James, filed a lawsuit challenging the state of Ohio’s refusal to recognise same-sex marriage on death certificates. Richard Hodges – Director of the Ohio Department of Health – was named as the defendant in the case.
Obergefell and James were married in Maryland in 2013 and after James, who had a terminal illness, died, state officials in Ohio refused to acknowledge that they had been married at the time of James’ death.
The case was moved up through several courts, and on June 26, 2015, the U.S Supreme Court voted five to four to grant marriage equality nationwide.
Justice Anthony Kennedy at the time said that the right to marry is a fundamental right “inherent in the liberty of the person”.
What could happen to marriage equality?
A majority of states have ‘zombie’ anti-marriage equality laws on the books from years ago that could no longer be enforced after Obergefell v. Hodges was passed.
There is no telling whether Obergefell v. Hodges will get the same treatment as Roe v. Wade, but Supreme Court justices Clarence Thomas and Samuel Alito – both Republican – have previously said they think the ruling in favour of Obergefell was wrong, and say they would like to review the decision.
Thomas and Alito issued a manifesto in 2020 in which they wrote that Obergefell v. Hodges was an unconstitutional decision because it “bypassed” the “democratic process” and caused people “with sincerely held religious belief concerning marriage” to “find it increasingly difficult in participate in society”.
“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty,'” Thomas wrote.
If these justices have their way, Obergefell v. Hodges could be overturned in the same way Roe v. Wade was, which could potentially lead to the revival of old anti-LGBTQ+ laws that should be consigned to history.
