Romper

Can Trump Repeal Same-Sex Marriage? The Answer Is Complicated

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Donald Trump's victory in the 2016 presidential election has created a culture of fear within the LGBTQ community, members of which are worried about what the election results could mean for them after years of enjoying political gains during the presidency of Barack Obama. Among their primary concerns is one question: Can Trump repeal same-sex marriage?

Throughout his campaign, Trump often indicated a willingness to put an end to many of Obama's progressive policy decisions should he be elected president, including executive orders that provide protections for both transgender students and for LGBTQ individuals employed by federal contractors. However, Trump's plan for his first 100 days in office, released in October, does not reference same-sex marriage, "Don't Ask, Don't Tell," or anything else related to the LGBT community — that is, at least not directly. Nevertheless, it does include the following language, according to PBS:

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University of California Loas Angeles students march through campus on November 10, 2016 in Los Angeles, California, during a 'Love Trumps Hate' rally in reaction to President-elect Donald Trump's victory in the presidential elections. / AFP / Frederic J. BROWN (Photo credit should read FREDERIC J. BROWN/AFP/Getty Images)

While Trump's plan for his first 100 days in office doesn't specifically mention the repeal of same-sex marriage, it does double-down on his earlier promise to nominate a conservative justice to fill the vacancy left by the sudden death of Antonin Scalia in February. During an interview on Fox News later that month, Trump said he disagreed with the 2015 Supreme Court decision that the U.S. Constitution guarantees a right to same-sex marriage and indicated he would appoint judges to help overturn the ruling:

Still, overturning same-sex marriage can only happen in one of three ways, according to Reference.com:

  1. States themselves can amend the Constitution, which requires approval by three-fourths of all state legislatures.
  2. The Supreme Court can overrule itself by revisiting same-sex marriage due to a new conflict that pertains to the original Obergefell v. Hodges decision. (The court acted similarly in 1954's Brown v. Board of Education.)
  3. On rare occasions, Congress can address a Supreme Court ruling it doesn't agree with by passing new legislation to counter the legal precedent.
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WASHINGTON, DC - NOVEMBER 4: Paul D. Clement, Partner, Kirkland & Ellis, speaks during a Supreme Court Bar Memorial in honor of the late Supreme Court Justice Antonin Scalia in the Great Hall of the Supreme Court on November 4, 2016 in Washington, DC. Clement was a clerk to Justice Scalia during the 1993 term. (Photo by Carolyn Kaster-Pool/Getty Images)

None of these avenues appear likely in a Trump administration. Given the changing tide of public opinion about same-sex marriage — according to the Pew Research Center, a majority of Americans now support marriage equality — it's improbable the states would seek to amend the Constitution, nor is it expected Congress will try passing new legislation to outlaw the practice. In addition, all five justices who ruled in favor of marriage equality are still on the bench. Even if Trump succeeds in appointing a conservative justice, there's no reason to assume the court will decide to revisit the issue.

It is important to note, however, that President-elect Trump can easily nullify existing executive orders pertaining to the LGBT community, such as the aforementioned guidance on transgender facilities in schools. He could also decide that LGBTQ people can no longer serve in the military, though the Human Rights Campaign says that is "exceedingly unlikely."

Besides adopting a "wait and see" approach as Trump's inauguration draws closer, take comfort in the words of Mara Keisling, the executive director of the National Center for Transgender Equality: