Do Americans think same-sex marriage will be overturned? What a new poll found

Miami Herald

5 hours ago

Most Americans think that the constitutional right to same-sex marriage is in jeopardy — despite the fact that it remains popular, according to new polling.
In a June 11 YouGov survey, respondents were asked about Obergefell v. Hodges — the landmark Supreme Court decision that established the nationwide right to same-sex marriage — which will mark its 10-year anniversary on June 26.
In the poll, 54% of respondents said that there is at least an even chance that the high court will rule that 'a state is no longer required to perform and recognize the marriages of same‑sex couples.'
Specifically, 30% said there is a fifty-fifty chance this will happen, while 17% said it is likely and 7% said it definitely will happen.
Just 26% expressed doubts about this prospect, with 20% calling it unlikely and 6% saying it definitely will not occur. An additional 20% said they were not sure.
When the results were broken down by partisanship, some differences emerged.
Among Democrats, 66% said there is at least a fifty-fifty chance that the court will revoke the right to same-sex marriage, while less than half of Republicans, 47%, and 50% of independents said the same.
Despite the widespread feeling that same-sex marriage could be on the court's chopping block, most respondents, 53%, said they don't want to see the right taken away.
Less than half that share, 25%, said they want Obergefell v. Hodges to be overturned, and 22% said they were not sure.
Here, again, there were significant partisan differences. Just 13% of Democrats and 19% of independents said they want to see it overturned, while nearly half of Republicans, 45%, said the same.
The poll sampled 4,417 U.S. adults. A YouGov representative did not respond to McClatchy News' request for the survey's margin of error.
What happens if same-sex marriage is overturned?
If the constitutional right to same-sex marriage is revoked, then the the authority to permit or ban same-sex marriage would return to individual states, Nan Hunter, an emeritus professor at Georgetown Law, told McClatchy News.
Fourteen states — including Texas, Georgia, Ohio and Michigan — have laws on the books banning same-sex marriage, so these would come back into effect, according to Newsweek.
By comparison, 36 states passed laws legalizing same-sex marriage before 2015, so it would remain legal in these, according to PBS.
Additionally, Douglas NeJaime, a professor at Yale Law School, told McClatchy News 'some state courts had found bans on marriage unconstitutional under state constitutional law, and these decisions are not undone even if the Court overrules Obergefell.' Connecticut and New Mexico are among these states.
What happens to existing marriages?
Should the right to same-sex marriage be struck down, one issue that would come up is the status of existing same-sex marriages.
'In a decision reversing Obergefell, the Court would have to address the continuing validity of marriages performed prior to the ruling,' Hunter said. 'It is likely that already-existing marriages would not be affected, at least for most purposes…But there is no guarantee as to what the Court would do.'
NeJaime echoed this sentiment, saying the prospect of the court undoing existing marriages is 'highly unlikely.'
He added that there is some precedent for this. Several months after California's Supreme Court legalized same-sex marriage statewide in 2008, voters passed Proposition 8, a ballot initiative to ban same-sex marriage.
'The California Supreme Court ruled that the existing marriages (about 18,000 such marriages) remained valid,' NeJaime said. 'That makes sense given that the couples had legal authority to marry at the time and they accrued important interests based on the marriage (e.g., property interests, parental rights, social security benefits, etc.).'
Is same-sex marriage actually at risk?
Hunter — who has studied sexuality as it relates to the law — expressed skepticism that the Supreme Court will move to reverse Obergefell v. Hodges.
She noted that just two justices on the bench, Justices Clarence Thomas and Samuel Alito, have signaled their support for this idea.
In his concurring opinion in the 2022 decision that overturned Roe v. Wade, Thomas wrote that the Supreme Court 'should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell.'
'In my judgment, we are in a paradoxical position at the moment: If Obergefell went to the Supreme Court today, I think we would lose,' Hunter said. 'But if an attempt to reverse it went to the Supreme Court today, I think we would win.'
The main reason for this, she said, is that the high court is wary of making a ruling that is at odds with public opinion.
'Courts generally are hesitant to upset settled expectations, especially on deeply personal issues where there is no plausible claim of harm to other persons,' Hunter said.