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California California GovernorCalifornia Secretary Of StateCalifornia California California Constitutional ban was overturned prior to Obergefell. Statute explicitly allows for same-sex marriage. Same-sex marriage would likely still be legal should Obergefell be overturned.
         

LGBTQ Civil Rights in California: The Impact of Overturning Obergefell v. Hodges and Lawrence v. Texas

California has long been at the forefront of LGBTQ rights in the United States, passing progressive laws and offering protections to LGBTQ individuals. However, even in a state known for its progressive stance on LGBTQ issues, the potential overturning of two pivotal Supreme Court decisions—Obergefell v. Hodges (2015) and Lawrence v. Texas (2003)—could have profound consequences for LGBTQ rights in California. These decisions, which legalized same-sex marriage and decriminalized consensual same-sex intimacy, have played a central role in ensuring the civil rights of LGBTQ people. If the U.S. Supreme Court were to reverse these rulings, California would be forced to reckon with a shift in the legal landscape, presenting new challenges for LGBTQ individuals and families.

While California is unlikely to fully return to the legal environment that existed before these decisions, the state would still face significant implications for LGBTQ civil rights. In this blog, we’ll explore how a reversal of Obergefell and Lawrence could affect same-sex marriage, LGBTQ adoption, the re-criminalization of sodomy, the legality of conversion therapy, and hate crimes against LGBTQ people in the state.

The Impact of Overturning Obergefell v. Hodges in California

  1. Same-Sex Marriage: Obergefell v. Hodges legalized same-sex marriage nationwide, allowing same-sex couples in all states to marry and enjoy the associated legal benefits. If the Supreme Court were to overturn Obergefell, California would not automatically lose marriage equality, since the state’s Supreme Court had legalized same-sex marriage in 2008, and the state had passed legislation affirming marriage equality through AB 1329 in 2013. California’s constitution recognizes marriage equality and has strong state-level protections for LGBTQ individuals. Thus, even without federal protection, California would likely continue to recognize same-sex marriages.

    However, the broader national environment could impact California. For instance, some same-sex couples from other states could face difficulties in marrying or having their marriages recognized in their home states, while interstate legal issues (like inheritance, tax benefits, and healthcare access) might become more complex for California’s LGBTQ residents when interacting with more conservative states.

    In addition, the reversal of Obergefell could encourage efforts from more conservative groups to challenge state-level marriage equality in California, though such challenges would likely face significant legal opposition. Ultimately, while California would likely maintain marriage equality, the federal rollback could embolden anti-LGBTQ advocacy across the country, creating legal and social tensions for LGBTQ individuals in the state.

Recriminalization of Same-Sex Intimacy: The Risk of Re-Enacting Sodomy Laws

The Lawrence v. Texas decision struck down laws that criminalized consensual same-sex sexual activity, affirming the constitutional right to privacy in intimate relationships. However, if the Supreme Court were to reverse Lawrence, it could open the door for states to reintroduce sodomy laws. Although California does not have a sodomy law on the books, the reversal of Lawrence would create a potential legal basis for such laws to be reinstated in some states.

If sodomy laws were reintroduced, they would criminalize same-sex intimacy in certain contexts. While it’s unlikely that California would move to reinstate such laws, the broader social climate could see a rise in anti-LGBTQ sentiment, even in progressive states. This could encourage local ordinances or pressures from more conservative regions to pass laws aimed at restricting LGBTQ rights.

Moreover, the mere existence of sodomy laws could influence how LGBTQ people are treated in other parts of the country and lead to fears about criminalization for people visiting or traveling through states that would reinstate such laws. This would undermine the freedoms that LGBTQ people currently enjoy under the protection of Lawrence.

LGBTQ Adoption Rights in California

While California has been a leader in advancing LGBTQ adoption rights, a reversal of Obergefell and Lawrence could complicate legal issues around adoption, particularly when same-sex couples from other states seek to adopt or establish parental rights.

  1. Second-Parent Adoption: California allows second-parent adoption, which enables a non-biological parent in a same-sex couple to adopt the child of their partner. This provides legal recognition of both parents’ rights, which is critical in cases where a couple separates or one parent passes away. If marriage equality were no longer federally recognized, it could lead to complications for couples who are unmarried but wish to establish legal rights to their children, particularly in states where same-sex marriage would no longer be allowed.

  2. Interstate Adoption: Many same-sex couples in California might face challenges when attempting to adopt children across state lines, particularly in more conservative states that still discriminate against LGBTQ parents. If Obergefell were overturned, it could lead to the re-emergence of discriminatory adoption laws in other states, making it harder for LGBTQ individuals or couples to foster or adopt children in these regions.

  3. Foster Care and Discrimination: California has robust protections against discrimination in foster care and adoption services, but in states where marriage equality is no longer protected, LGBTQ parents may face increased challenges in adopting or fostering children. This could particularly harm children in the foster care system, as they would be deprived of the opportunity to be placed with loving, capable LGBTQ parents in areas where such parents are discriminated against.

The Return of Conversion Therapy: What It Means for LGBTQ Youth

Conversion therapy, which aims to change an individual’s sexual orientation or gender identity, has been widely discredited by health professionals and organizations like the American Psychological Association. California has already taken significant steps to protect minors from these harmful practices by passing laws that ban conversion therapy for minors.

However, if Obergefell and Lawrence were overturned, the momentum to legalize or expand conversion therapy could grow, especially in more conservative parts of the country. While California would likely continue to enforce its ban on conversion therapy, the broader atmosphere of anti-LGBTQ sentiment could still lead to an uptick in conversion therapy practices in other states, putting LGBTQ youth at risk.

Even though California has laws in place to protect minors from conversion therapy, other states without such protections could become more dangerous for LGBTQ youth, especially those living in families or communities that reject their sexual orientation or gender identity. Nationally, the rise of conversion therapy could lead to increased mental health challenges for LGBTQ youth, with potentially devastating long-term effects.

Hate Crimes and Violence Against LGBTQ People in California

Hate crimes against LGBTQ individuals remain a significant concern in California, though the state has made substantial progress in combating these issues. According to the FBI’s 2021 Hate Crime Statistics report, California reported 281 hate crimes based on sexual orientation, making it one of the states with the highest number of such incidents. Transgender people are particularly at risk for violence, with a notable percentage of the state's hate crimes targeting the transgender community.

  • Hate Crimes and Violence: Even in progressive states like California, hate crimes targeting LGBTQ individuals have been rising. If Obergefell and Lawrence were overturned, the visibility and safety of LGBTQ people could be jeopardized. Anti-LGBTQ hate crimes could escalate as people might feel emboldened by the rollback of federal protections. The mere perception that LGBTQ people no longer have legal protections could lead to increased violence, harassment, and intimidation.

    The rise in hate crimes could also disproportionately affect transgender individuals, who already face a significantly higher risk of violence compared to their cisgender counterparts. The threat of hate crimes would likely be exacerbated by the broader cultural climate created by the potential reversal of Obergefell and Lawrence.

Moving Forward: Advocacy and Legal Protections in California

Despite the challenges posed by a potential reversal of Obergefell and Lawrence, California’s strong LGBTQ advocacy community and its progressive legal framework provide significant protections for LGBTQ individuals in the state. Local organizations, such as Equality California, The Trevor Project, and GLAAD, continue to push for comprehensive protections for LGBTQ people at both the state and national levels.

California’s laws that protect against discrimination in employment, housing, and public accommodations, along with its existing bans on conversion therapy and robust LGBTQ adoption policies, would continue to serve as a model for other states. Even in the face of potential federal rollbacks, California would remain a sanctuary for many LGBTQ individuals, though the fight for civil rights and protections would continue on the national stage.

Conclusion

If the U.S. Supreme Court were to overturn Obergefell v. Hodges and Lawrence v. Texas, California’s LGBTQ community would still be relatively protected compared to many other states, but the legal landscape would become more challenging. Same-sex marriage would likely remain legal in the state, but nationwide, LGBTQ individuals could face significant setbacks in areas like adoption, family rights, and personal safety. The return of sodomy laws and the potential for a rise in conversion therapy would add further risks, especially for vulnerable LGBTQ youth. Additionally, hate crimes and violence against LGBTQ individuals could become more prevalent.

However, California's history of advocacy, legal protections, and LGBTQ-friendly policies would provide a buffer against the worst outcomes. With continued activism and legal efforts, the state would work to maintain its reputation as a beacon of LGBTQ rights, even in the face of federal setbacks. The fight for equality is far from over, but California will continue to be a critical player in securing the civil rights of LGBTQ individuals, both within the state and nationwide.