Could same-sex marriage be next?
Gay Americans and their allies have much to celebrate on Thursday, the 10th anniversary of Obergefell v. Hodges, the Supreme Court decision that legalized same-sex marriage nationwide.
Same-sex marriage has, by almost every indication, become ingrained in everyday American life. Since the decision, there have been 591,000 same-sex marriages, and today, nearly two-thirds of Americans approve of the policy. Same-sex couples are staples in contemporary movies and television shows, and reside, often with their children, in small towns, cities and suburbs all across America.
But advocates of gay rights are approaching this anniversary with trepidation as much as celebration.
Led by the Trump administration, conservatives are pushing to eliminate protections and programs for L.G.B.T.Q. people. And three years ago this month, the justices overturned Roe v. Wade and eliminated the constitutional right to abortion, demonstrating that this Supreme Court is willing to jettison five decades of precedent.
Among Republicans, support for same-sex marriage has dropped significantly — to 41 percent last month, from 55 percent in 2021, according to a Gallup poll. The finding reflects the Republican move to the right, as well as what analysts said is a spillover from rising backlash to other L.G.B.T. Q. issues — in particular, the push for transgender rights.
The Southern Baptist Convention, which is often seen as a strong indicator of conservative evangelical opinion, voted overwhelmingly earlier this month to call on the Supreme Court to overturn Obergefell, citing inspiration from the successful effort to overturn Roe. That echoed a similar call from conservative activists in states like Michigan and Tennessee. Thirty-one states still have statutes or constitutional amendments banning marriage equality, though they cannot be enforced because of the Supreme Court ruling.
And conservatives are expected in the coming weeks to ask the court to hear a direct challenge to Obergefell. Kim Davis, the Kentucky county clerk who was jailed for refusing to issue marriage licenses to same-sex couples, will petition the Supreme Court, her lawyers have said, to overturn the judgment against her — and to overturn Obergefell.
Still, for all the flickers of opposition, the court has ample reasons not to undo the protections that Obergefell extended, defenders of gay rights said.
“We understand that people feel unsettled now — about many things,” said Mary Bonauto, who argued the case at the Supreme Court on behalf of James Obergefell, an Ohio man who sued for the right to marry his dying partner.
But the overturning of Roe, Ms. Bonauto said, does not suggest that marriage rights are doomed. “The court understands this issue is about the foundational importance of family,” she added. “That’s why it has described marriage as ‘the most important relation in life,’ a ‘basic liberty,’ essential to ‘the pursuit of happiness.’”
She added, “This is not something you should be able to take away or again deny to same-sex couples.”
Unlike abortion, same-sex marriage is an issue where support overall has grown over time, among both voters and political leaders.
“There has certainly been a backlash against L.G.B.T. rights since Obergefell, but most of it has been aimed at areas where conservatives can rewrite laws through the political process — around trans issues, parental rights, school and library policies,” said Sasha Issenberg, the author of a book on the history of same-sex marriage. “What we haven’t seen, though, is any movement emerge aimed at reversing the new status quo on marriage.”
And notably, Mr. Trump, while appointing judges and top officials who oppose the right for gay couples to marry, has signaled no opposition to Obergefell. He has appointed gay people to key positions, among them Scott Bessent, his treasury secretary, who is the highest-ranking openly gay person to serve in any presidential administration, and Richard Grenell, a special presidential envoy. Mr. Bessent is married to a man; Mr. Grenell has in interviews talked about the importance of the visibility of “normal gays,” which some gay rights leaders took as a gentle reference to same-sex marriages, while belittling gay activists who champion trans rights and sexual liberties.
Evan Wolfson, the lawyer who founded Freedom to Marry, one of the first groups that pushed for the legal recognition of same-sex marriage, said that he considered the threat to marriage rights less serious than other policies pushed by the Trump administration.
“If you ask me, ‘Could this happen?’ — of course it could happen,” said Mr. Wolfson, who called from an airport on his way to Alabama for an event celebrating the anniversary of the marriage ruling. “Are there two votes on the Supreme Court to do this damage? Yes,” he said, mentioning Justices Clarence Thomas and Samuel Alito.
“Are there five votes? I don’t see it.”
The difference between Obergefell and Roe, he said, was that public support for gay marriage had been building long before the court acted. “The court did not jump out ahead of public opinion,” he said. “We had won the freedom to marry in 37 states by the time of the ruling.”
Indeed, the contrast between what happened 10 years after Roe and 10 years after Obergefell is striking.
“Constitutional amendments to effectively overturn Roe were regularly being introduced in Congress, and in 1983, a bipartisan amendment got 49 votes in the Senate,” Mr. Issenberg said. “A growing coalition was working to build political support for that cause in states and through national political action.”
Today, there is little organized opposition to the Obergefell decision. It is a dramatic contrast to 2004, when state ballot initiatives seeking to outlaw same-sex marriage helped President George W. Bush win re-election. “Very dramatically, the sky has not fallen,” Mr. Wolfson said. “People have seen with their own eyes family helped and not hurt.”
Even some conservative activists agree that fallout from the decision has not easily lent itself to a mass opposition movement.
Terry Schilling is president of the American Principles Project, a social conservative organization, which after Obergefell pivoted from same-sex marriage to the debate over transgender children in school sports and locker rooms.
Reviving a fight over same-sex marriage, he said, lacks the necessary ingredients for a winning social issue.
“Right now, there isn’t a mass uprising amongst the American people,” Mr. Schilling said. “So there isn’t really broad support for overturning Obergefell. And politicians have no interest in it.”
In fact, more than three dozen House Republicans helped pass legislation in 2022 that required states and the federal government to recognize the validity of same-sex marriages.
At a moment when liberals fear that some longstanding civil rights protections are under threat, L.G.B.T.Q. policy strategists said the level of public support for equal marriage rights — near a supermajority — could act as a bulwark against encroachment from lawmakers and the courts.
“The work that we did to really build support for marriage equality in a deep and sustained way has put it in a position of strength — when a lot of other things are very shaky,” said Lanae Erickson, senior vice president for social policy and politics for the Third Way, a political advocacy group that pursues centrist policies.
The pressure campaign to reconsider Obergefell is no surprise to gay rights advocates, who have spent decades in trench warfare on these issues. Still, the very nature of trying to reverse Supreme Court precedent is that it is a long and grueling game.
“There are some people who are trying to stir the pot,” Ms. Bonauto said. “And I don’t want to exaggerate their influence. Far from it. But we have to be watchful and wary.”
Adam Nagourney is a Times reporter covering government, political and cultural stories in California, focusing on the effort to rebuild Los Angeles after the fires. He also writes about national politics.
Jeremy W. Peters is a Times reporter who covers debates over free expression and how they impact higher education and other vital American institutions.
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