We’re just a few months into this President’s second term, and the LGBTQ community is already feeling under attack. Transgender Americans have been the subject of federal executive orders and legislation meant to deny them rights or keep them from playing sports on a team matching their gender identity. But another concern many have is the right to same-sex marriage, which has been the law of the land for less than 10 years.
Living in the Northeast, it’s relatively safe to bank on being able to get married to whomever you choose, but there are people in other parts of the country who don’t necessarily feel that same security.
Earlier this year, state lawmakers in Idaho passed a resolution to call for the U.S. Supreme Court to overturn the decision in Obergefell v. Hodges, the landmark decision guaranteeing marriage equality. The filing said in part, “marriage as an institution has been recognized as the union of one man and one woman for more than two thousand years.” While this decision doesn’t hold any legal weight, it’s a signal of a bigger shift in sentiment. Idaho isn’t alone. Several other states have introduced similar measures.
Even the first openly gay U.S. cabinet secretary, Pete Buttigieg, has expressed his concerns. In an appearance on CBS’ The Late Show with Stephen Colbert, Buttigieg told Colbert the justices “certainly don’t seem terribly concerned about allowing precedents to stand.” The former transportation secretary was clearly referencing the 2022 Dobbs v. Jackson Women’s Health Organization ruling, which sent the issue of abortion legalization back to the states.
Although abortion and same-sex marriage are separate issues, there’s a common thread between these cases: the 14th Amendment. It contains the “equal protection clause,” which reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The justices in 2015 interpreted that to mean the government couldn’t deny people the right to marry just because their parts are the same. Justice Samuel Alito argued against the application of that clause in Dobbs, writing, “Abortion is not a sex-based classification.”
So, is it realistic to think the Supreme Court could overturn Obergefell like it did Roe v. Wade?
“Essentially, the Supreme Court created an entirely new framework by ignoring the precedent of past decisions,” said Matthew Coleman, a lawyer at New Jersey law firm Einhorn, Barbarito, Frost, Botwinick, Nunn & Musmanno. Having represented same-sex couples and members of the LGBTQ community in family law matters, he’s been following this push against same-sex marriage closely. “‘Well-settled law’ is no longer the reassurance it once was.”
The moment that raised the first alarm bells was Justice Clarence Thomas’ concurring opinion in Dobbs. Despite the case focusing on abortion rights, Thomas name-dropped Obergefell and other cases, writing, “[I]n future cases, we should reconsider all of this Court’s substantive due process precedents… [W]e have a duty to ‘correct the error’ established in those precedents.”
Coleman sees a shift toward this way of thinking. “Thomas has been an extreme outlier on the Court in the past,” he explained. “However, currently, his views are closer to the majority of the Court than ever before.”
In a scenario where the nation’s highest court took up a fight against marriage equality and ruled that the justices erred in their 2015 decision, the states would be able to decide whether or not to allow same-sex couples to wed. Coleman said it “would be a devastating blow to the LGBTQ community and would cause similar chaos and fallout to what we have seen with the Dobbs decision.”
Breaking from federal precedent echoes a refrain in which the current administration believes: allowing states to regulate themselves. As of this writing, the President is planning to sign an executive order to disband the U.S. Department of Education. He told reporters, “I want to bring schools back to the states.”
While a possible overturning of Obergefell might be disheartening for queer Americans in states that don’t have protections on the books, not all is necessarily lost. Shortly after the Dobbs ruling, it appeared lawmakers saw the writing on the wall. Rep. Jerry Nadler of New York and Sen. Tammy Baldwin of Wisconsin sponsored a bill called the “Respect for Marriage Act.” At the time, Democrats held a slim majority in the House and an even slimmer one in the Senate. But this legislation ended up garnering bipartisan support, once it was amended to say religious groups couldn’t be forced to perform same-sex marriages. Essentially, the legislation forces states to recognize same-sex marriages that were performed legally, even if that state doesn’t allow them to be performed within its jurisdiction.
“New Jersey same-sex couples should have recourse when traveling or relocating to another state, provided the Respect for Marriage Act is upheld,” Coleman said.
President Joe Biden signed the bill into law on Dec. 13, 2022. At the time, he said, “[M]arriage is a simple proposition: Who do you love and will you be loyal to that person you love? It’s not more complicated than that.”
The ACLU made an important point on X, the social media platform formerly known as Twitter, saying, “The bill does not, however, codify the right of same-sex couples to marry in all 50 states, as the Supreme Court deemed constitutionally required in Obergefell v. Hodges. If Obergefell is overturned, states would still be able to deny marriage licenses to LGBTQ couples.”
Even with the resurgence of anti-LGBTQ marriage sentiment from many lawmakers on the right, public opinion in favor has increased. Gallup has regularly polled Americans on the matter. In July 2015, a month after the Supreme Court handed down the Obergefell ruling, 58% of people answered they were in favor of same-sex marriage. That number climbed over the years, with a surge in support peaking at 71% in 2022 and 2023. 2024 saw a small dip to 69%.
Change doesn’t happen overnight, and in the case of marriage equality, it took a long time. Former Justice Anthony Kennedy, a known conservative who wrote the majority opinion in Obergefell, interpreted the Constitution in that case in favor of a community that his party historically has not supported. In that ruling, he said, “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”
