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Is Marriage Equality Next Target for SCOTUS Conservative Supermajority?

Probably not, but there may be a more insidious threat aiming to erode legal recognition of same-sex marriage.

June 14, 2022

Seven years ago, the Supreme Court’s ruling in Obergefell v. Hodges extended the freedom to marry to gay and lesbian couples nationwide. It was a remarkable victory for a scrappy social movement that succeeded in winning hearts and minds — in the face of deep societal resistance — through a combination of lawsuits, political mobilization, and smart appeals to public sentiment. President Barack Obama, one of many converts to the cause, said the decision “affirms what millions of Americans already believe in their hearts.”

In the wave of euphoria that accompanied this milestone in the advancement of human dignity and equality, it was easy to forget that the case was decided by the narrowest of margins: five votes to four. Since then, the ideological center of the Court has shifted sharply to the right. There are now six sitting justices who believe that Obergefell was wrongly decided. 

Does that mean this hard-won gain is now on shaky ground?

Historically, the justices have been reluctant to overrule cases that expand rights. But a mysteriously leaked opinion in Dobbs v. Jackson Women’s Health Organization, a closely watched case concerning abortion rights, has left many people worried about a new phase of combat in a national debate that seemed to be settled.

The draft opinion in Dobbs, purportedly crafted by Justice Samuel Alito on behalf of a five-justice majority, suggests that the Court is prepared to overturn the 49-year-old precedent of Roe v. Wade, repudiating the right to terminate one’s own pregnancy as “egregiously wrong from the start.” While only a draft that might still be changed, the document is notable for its shockingly narrow conception of what constitutes a fundamental right. In Alito’s view, when rights are not explicitly or implicitly mentioned in the Constitution’s text, only those that are “deeply rooted in American history” should be protected by the courts. The right to an abortion, the justice says, is no such right. Neither, of course, is the right of gay and lesbian couples to marry.

To soften the blow of the jurisprudential hammer, Alito suggests that the Court’s action would not “cast doubt on precedents that do not concern abortion.” But that hasn’t stopped worried commentators from sounding the alarm. Writing for Vox, Ian Millhiser warns that the leaked opinion is nothing less than “a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the court.”

Could Obergefell be the next precedent to fall? 

Possibly. It’s worth remembering that Alito wrote an angry dissent in that case, disparaging the Court’s ruling with the same line of attack he now deploys to doom Roe. It was “beyond dispute,” Alito insisted, that the right to same-sex marriage was not among those rights “deeply rooted” in history and tradition. Notably, he harped on “the newness of the right,” noting it was “contrary to long-established tradition.”

That said, even “new” rights can take root with amazing speed. Since Obergefell was decided, most Americans have come to embrace marriage equality as a matter of fundamental fairness. Support for same-sex marriage has never been higher, rising from 54 percent in 2014 to 68 percent today. During that time, more than half a million gay and lesbian couples have entered into marriages and formed families. Those unions could not be easily undone should the Court dare to overturn Obergefell and allow states to once again “define” marriage to exclude gay and lesbian couples.

For these reasons, most Court observers doubt that the justices would attempt to turn back the clock on marriage equality. But the fallout from the Dobbs decision is not the only threat on the horizon. For gay and lesbian couples who have only recently enjoyed the benefits and dignity of marriage, a quiet campaign to erode legal recognition of same-sex unions in the name of “religious liberty” may pose a more insidious threat.

Like the campaign of “massive resistance” led by die-hard segregationists in the wake of Brown v. Board of Education, religious right activists quickly pivoted from the loss in Obergefell to a strategy of undermining it by arguing that measures adopted to uphold the equality of LGBTQ people can violate other people’s “religious liberty.” The Alliance Defending Freedom (ADF), a legal advocacy group committed to “ensuring the law respects God’s created order for marriage, the family, and human sexuality,” has led the charge.

In 2017, just two years after Obergefell, the group brought same-sex marriage back before the justices in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that dispute, ADF lawyers represented a Colorado baker who refused to design a cake intended for the wedding of two gay men, citing his religious objection to their union. The couple sued under the state’s antidiscrimination law. In a 7–2 ruling, the Court affirmed that while states may protect gay and lesbian couples from discrimination, religious objections to same-sex unions remain protected forms of expression under the First Amendment

Three years later, in 2020, the justices were asked to hear the case of Kim Davis, a Kentucky county clerk who refused to issue marriage licenses to same-sex couples, citing “God’s authority.” Though the Court declined to take the case, Justice Alito, joined by Clarence Thomas, another jurist with a long record of hostility toward LGBTQ rights, took the opportunity to seemingly endorse a broad religious liberty loophole. Venturing that Davis “may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision,” the two maintained that “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws.”

In neither case were the justices ready to announce a principle that would allow individuals to overtly flout the law in the name of religious liberty, but that may be about to change after four years of judicial appointments by President Donald Trump. Among the 226 judges appointed during his tenure are many foot soldiers in the Christian right legal movement. They have already shown themselves to be sympathetic to lawsuits by conservative Christians seeking to opt out of complying with laws protecting LGBTQ people.

Seven years after Obergefell, the debate over same-sex marriage appears far from over. Those who support marriage equality should not be complacent. While Obergefell is likely safe, the forces of reaction will continue their attempts to whittle down the right as much as possible. And that means, more than ever, we need an engaged public willing to stand up to those who seek to roll back progress. Rights lost are rarely recovered.