It has been more than a decade since same-sex marriage dominated the national political discourse.
Public opinion turned rapidly toward acceptance well before the Supreme Court established same-sex marriage as a national right in 2015. By 2021, a Gallup poll showed that most Americans, including a majority of Republicans, favored legal recognition of such marriages, and ahead of the Republican National Convention in 2024, Donald J. Trump ordered the definition of marriage as between one man and one woman removed from his party’s platform.
But in state legislatures across the country this year, there is new activity on the same-sex marriage front — and echoes of the issue’s long, contentious past.
In half a dozen states, Republican lawmakers have introduced resolutions urging the Supreme Court to overturn its 2015 decision, Obergefell v. Hodges. In Tennessee, a Republican legislator has proposed a new category of “covenant” marriages between “one male and one female.” And in several states, including Virginia and Oregon, Democrats are laying the groundwork to repeal old state statutes and constitutional amendments that prohibited same-sex marriage, which could come back into effect should Obergefell be overturned.
No one is suggesting that reconsideration of the decision in Obergefell is imminent. Still, the number of state measures proposed signals an effort to shift the perception of same-sex marriage as an established civil right, leaders on both sides of the issue say.
“We have to prepare for the worst,” Jeremy Moss, the state’s first openly gay state senator, wrote in a piece for The Detroit Free Press under the headline, “Gay marriage isn’t safe in Michigan.” Mr. Moss, a Democrat, called for a ballot initiative to protect same-sex marriage after Representative Josh Schriver, a House Republican, introduced a resolution asserting that the Supreme Court’s decision had “confused the American family structure” and proposing that the Michigan Legislature condemn it.
Resolutions like Mr. Schriver’s, calling on the Supreme Court to undo Obergefell, carry no legal authority, and no state has approved such a resolution so far.
“Our reason for doing it is that it pushes the whole idea forward publicly,” said Brian Camenker, the founder of a Massachusetts organization, MassResistance, who has worked with state lawmakers to write the resolutions. “It’s a powerful statement for legislators to say, ‘This was a flawed decision,’ even if that statement has no legal standing.”
After decades of legal and legislative battles across multiple states, Massachusetts became the first state to issue marriage licenses to same-sex couples in 2004 as a result of a state court decision. More than two dozen states tried to fend off such an outcome by embedding a definition of marriage as between a man and a woman into their constitutions. Others passed statutes modeled on the federal Defense of Marriage Act, signed by President Bill Clinton in 1996, which denied federal recognition and benefits to same-sex couples. Some states did both.
Soon, though, the legal and cultural momentum behind opposition to same-sex marriage shifted. In 2013, the Supreme Court found that same-sex couples were entitled to federal benefits, and by 2015, at least 36 states had legalized same-sex marriage through a combination of legislation, court rulings and ballot initiatives. In June of that year, the Supreme Court’s 5-to-4 ruling in Obergefell enabled couples across the country to marry even if their states had banned it.
The decisiveness with which the nation seemed to then move on has left a lot of people baffled that same-sex marriage is again a matter for debate. The number of married same-sex couples in the United States doubled to 774,000 in the last decade, according to government data. Alliance Defending Freedom, a conservative Christian legal group that had helped coordinate opposition to same-sex marriage, refocused its efforts on seeking protections for business owners who decline to serve same-sex couples on religious grounds. And for the last several years, the fiercest debates on L.G.B.T.Q. issues in many state legislatures revolved around the rights of transgender adolescents and families.
“After marriage equality was achieved, I think a lot of folks thought, ‘OK, this is it, we did the thing,’” said Narissa Rahaman, executive director of Equality Virginia, an L.G.B.T.Q. rights group pushing to repeal the state’s old prohibition on same-sex marriage in case Obergefell is overturned. “So I think everyone’s kind of been transported to a mental space, especially younger generations, of not having to fight this hard.”
Questions about the vulnerability of the Obergefell decision began emerging in 2022 after the Supreme Court opinion that revoked a constitutional right to abortion. Justice Clarence Thomas wrote then that the court had a duty to reconsider decisions that relied on similar legal footing, including those on same-sex marriage, same-sex sexual activity and contraception.
Decisions in those cases depend on the due process clause in the 14th Amendment, which guarantees that states shall not “deprive any person of life, liberty or property, without due process of law.” In Roe v. Wade, the court found in 1973 that the right to privacy, including a woman’s decision about whether to terminate a pregnancy, falls under the “liberty” concept in the due process clause. In Obergefell, Justice Anthony Kennedy wrote for the majority that the clause protects the right to marry, calling it “a fundamental right inherent in the liberty of the person.”
But in Dobbs v. Jackson Women’s Health Organization, the 2022 decision that overturned Roe, the majority opinion written by Justice Samuel A. Alito Jr. observed that the question of which rights are covered by the due process clause “has long been controversial.” Any rights that are not explicitly mentioned in the Constitution, the justices determined, must be “rooted in the nation’s history and tradition,” a category that they found not to include abortion. In a concurring opinion, Justice Thomas went further, laying out his view that the due process clause protects only procedures, not outcomes. “Substantive due process,” the supposed basis for both the right to abortion and to same-sex marriage, he wrote, is an oxymoron that lacks any basis in the Constitution.
Experts say that any real challenge to Obergefell would probably come not from state legislative recommendations but from lawsuits that aim to highlight conflicts between the rights of same-sex couples to marry and religious freedoms guaranteed by the First Amendment. In 2020, Justices Thomas and Alito denounced harm they said Obergefell had caused for religious freedom even as they turned down an appeal in a case involving a Kentucky county clerk who was jailed after refusing to issue a marriage license to a same-sex couple.
Last year, Justice Alito appeared to more directly urge the court to reconsider Obergefell on a case in which a Missouri judge had allowed the dismissal of potential jurors based on their religious objections to same-sex relationships. The case, which Justice Alito joined in turning down for review on unrelated grounds, “exemplifies the danger” posed by Obergefell, he wrote, that the government will treat “as bigots” Americans who “do not hide their adherence to traditional religious beliefs about homosexual conduct.”
“The opinion of the Court in that case made it clear that the decision should not be used in that way,” Justice Alito wrote, “but I am afraid that this admonition is not being heeded by our society.”
Supporters of same-sex marriage already have begun taking steps for the possibility that Obergefell might someday be undone. In 2022, Congress passed a law mandating that marriages performed by states be given recognition by the federal government, and by other states. Last year, voters in California, Colorado and Hawaii passed ballot measures repealing constitutional amendments banning same-sex marriage.
It is uncertain whether any challenge to Obergefell at this point would receive the four votes required for the Supreme Court to agree to a review. And the Trump administration has seemed to project mixed messages on L.G.B.T.Q. rights. Even as he has made limiting official recognition of transgender identity a priority, Mr. Trump swapped the longstanding definition of marriage in the G.O.P. platform for an assertion that “Republicans will promote a culture that values the sanctity of marriage.”
“Millions of people have changed their lives and relationships as a result of Obergefell,” said Brad Sears, senior scholar at the Williams Institute, a U.C.L.A. Law School program that studies L.G.B.T.Q. demographics. “I believe that a majority of the members of the court will take that seriously.”
But state lawmakers who introduced resolutions calling for Obergefell to be overturned said they were undeterred by the notion that a state recommendation carries no legal weight with the Supreme Court or by setbacks in their statehouses. In Idaho and North Dakota, the resolutions passed in one chamber of the legislature before failing to advance.
Several lawmakers said they were motivated by a desire to defend a right they believe belongs to states, and a belief that society benefits by limiting marriage to including one man and one woman.
“To me, it is the proper fight to take up, because it kind of takes care of both pieces,” said Representative Tony Randolph, a Republican from South Dakota, where the resolution failed to emerge from a House committee this session.
“This is not a light subject, so it has the potential to bring quite a bit of heat to an individual,” he said. “I will work to get more support this next time around.”
Amy Harmon covers how shifting conceptions of gender affect everyday life in the United States.
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