10 years after Obergefell, gay marriage faces growing threats

The Hill

6 hours ago

Same-sex marriage equality has been the law of the land for 10 years as of Thursday. But after a string of crushing losses for LGBTQ rights at the Supreme Court this term and calls for the court to revisit its decision in Obergefell v. Hodges — including from its own justices — those involved in the fight wonder how long their victory may last.
'I certainly never thought that at the 10th anniversary of marriage equality, I'd be worried about making it beyond 10 years,' said lead plaintiff Jim Obergefell. 'Yet, here we are.'
Obergefell sued the state of Ohio in 2013 over its refusal to recognize same-sex marriage on death certificates. His late husband, John Arthur James, whom he married in Maryland, died of complications from ALS, or amyotrophic lateral sclerosis, shortly before litigation began.
'John and I started something that was scary, something that was overwhelming,' he said in a recent interview. 'But it was all for the right reason; we loved each other, and we wanted to exist.'
'We wanted to be seen by our state, and we wanted John to die a married man,' he said. 'And I wanted to be his widower, in every sense of that term.'
Two years later, on June 26, 2015, the Supreme Court ruled that the right to marry is guaranteed to same-sex couples by the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution.
'It truly changed, within the LGBTQ community, the feeling of equality,' said Jason Mitchell Kahn, a New York wedding planner and author of 'We Do: An Inclusive Guide When a Traditional Wedding Won't Cut It.'
Since that ruling, same-sex weddings have exploded 'beyond our wildest imagination,' said Kahn, who is gay. 'I grew up never thinking that people like me would get married, and so to now be working in it all the time, it's so special.'
Nearly 600,000 same-sex couples in the U.S. have married since, boosting state and local economies by roughly $6 billion and generating an estimated $432 million in sales tax revenue, according to a report released this week by the Williams Institute at UCLA School of Law.
'It has been good for people's families, good for the economy, good for society,' said Mary Bonauto, senior director of civil rights and legal strategies at GLAD Law in Boston.
Bonauto, who argued the Obergefell case before the Supreme Court in 2015, said the ruling has been 'transformative for couples and for their families.'
'The legal rights are enormously consequential, whether it's inheritance, family, health insurance, the ability to file your taxes together, Social Security benefits when a spouse passes,' she said. 'Now, people can count on their marriages day to day as they're living their lives, raising their families, planning for their futures, buying homes together, building businesses. This is really so core to people's ability to be part of and function in society.'
Public opinion polling shows national support for same-sex marriage at record highs, hovering between 68 and 71 percent. In a May Gallup poll, however, Republican support for marriage equality fell to 41 percent, the lowest in a decade.
A survey released this week by a trio of polling firms painted a starkly different picture, with 56 percent of Republican respondents saying they support same-sex marriage. Kristen Soltis Anderson, a Republican pollster whose firm Echelon Insights helped conduct the survey, wrote in a New York Times op-ed this week that 'there is little political passion or momentum on the side of opposition to legal same-sex marriage.'
But Anderson cautioned that the 'live and let live' ethos does not extend to the entire LGBTQ community, and 'Republican voters seem to have made a distinction between the 'L.G.B.' and the 'T,'' which stands for transgender.
In recent years, the GOP has appeared more amenable to same-sex marriage — the party's 2024 platform scrapped longstanding language that explicitly opposed it — though recent efforts to undermine marriage equality or overturn the Supreme Court's ruling in Obergefell have been spearheaded by Republicans.
In January, Idaho's GOP-dominated House passed a resolution calling for the high court to reconsider its decision, which the justices cannot do unless they are presented with a case. The resolution, which is nonbinding, expresses the legislature's collective opinion that the court's Obergefell ruling 'is an illegitimate overreach' and has caused 'collateral damage to other aspects of our constitutional order that protect liberty, including religious liberty.'
Republican lawmakers in at least five other states, including Democratic-controlled Michigan, have issued similar calls to the Supreme Court. None of the resolutions' primary sponsors returned requests for comment or to be interviewed.
At an annual meeting in Dallas this month, Southern Baptists similarly voted overwhelmingly to endorse 'laws that affirm marriage between one man and one woman.'
The sweeping resolution approved at the gathering of more than 10,000 church representatives says lawmakers have a responsibility to pass legislation reflecting 'the truth of creation and natural law — about marriage, sex, human life, and family' and to oppose proposals that contradict 'what God has made plain through nature and Scripture.'
The document calls for overturning laws and court rulings that 'defy God's design for marriage and family,' which includes the Supreme Court's Obergefell decision.
Brent Leatherwood, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, said the church's resolution is a 'call for moral clarity.'
'At the individual level, we are trying to speak to individual consciences and tell them there's a better way to both think about marriage and participate in marriage than what they're seeing all around them in culture,' Leatherwood said.
Some of the Supreme Court's own justices have also voiced concerns about whether the Obergefell decision infringes on religious freedom or misinterprets the Constitution.
Justices Clarence Thomas and Samuel Alito, conservatives who dissented from the court's majority opinion in 2015, wrote again in 2020 that the court, in siding with the Obergefell plaintiffs, 'read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text.'
Last winter, in a five-page statement explaining the court's decision not to involve itself in a dispute between the Missouri Department of Corrections and jurors dismissed for disapproving of same-sex marriage on religious grounds, Alito wrote that the conflict 'exemplifies the danger' he anticipated in 2015.
'Namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be 'labeled as bigots and treated as such' by the government,' he wrote.
In a concurring opinion to the Supreme Court's 2022 majority ruling in Dobbs v. Jackson Women's Health Organization, in which the court overturned the constitutional right to abortion, Thomas said the justices 'should reconsider' past decisions codifying rights to same-sex marriage, gay sex and access to contraception — rulings he said were 'demonstrably erroneous.'
'I think there are a number of reasons why people are concerned now, and I don't think that's unreasonable,' said Bonauto, the attorney who argued in favor of marriage equality in 2015. 'I will say, however, that overturning Obergefell would be undeniably awful, and GLAD Law and others of us are going to fight tooth and nail with everything we have to preserve it and, really, we have some confidence that we will win.'
In late 2022, in large part because of Thomas's dissent in the court's Dobbs decision, Congress passed the Respect for Marriage Act, codifying protections for same-sex and interracial married couples.
The measure also formally repealed the Defense of Marriage Act (DOMA), a 1996 law that recognized marriage as exclusively between one man and one woman. The Supreme Court had already ruled a portion of that law unconstitutional in a decision handed down exactly two years before it ruled in Obergefell.
'We know in our nation that everything gets challenged eventually,' said Bonauto. 'But it's an extremely important recognition from the Congress that marriage is just too important to people to have it blink on and off when you cross state lines.'
'The importance of the Respect for Marriage Act should not be understated, right now in particular,' said Naomi Goldberg, executive director of the Movement Advancement Project, a nonprofit think tank. 'That bill being passed by Congress really has changed the game.'
In more than half of states, statutes or constitutional amendments banning same-sex marriage remain on the books, though 'zombie laws' against marriage equality are not enforceable because of the Supreme Court's ruling in Obergefell.
The Respect for Marriage Act prevents those measures from being enforced on already-married couples or couples married in states without a ban on same-sex marriage should the court's decision be overturned, a significant shift from the pre-Obergefell landscape, where recognition of marriage depended entirely on zip code.
'When you look at the map of where we were in 2015, and anti-equality laws, it was quite a different country,' said Goldberg. 'Families were making decisions about where to travel; do we need to take a birth certificate or a will with us?'
'The fact that those couples can marry in every place across the country and they can travel safely and not worry about being barred from a hospital room or not be able to make a decision for their child is remarkable,' she added. 'Those really tangible things can get lost when we talk about these big concepts like the Constitution and protections for communities.'
Asked about the handful of resolutions asking for the Supreme Court to revisit its Obergefell decision, Goldberg said more meaningful, and legally binding, action has taken place in states looking to bolster protections for same-sex couples.
Voters in three progressive states — California, Colorado and Hawaii — passed ballot measures in November that struck language from their constitutions defining marriage as being between one man and one woman. Additional states are hoping to get similar proposals before voters in 2026.
'I firmly believe that it would take a lot for couples in this country to lose the right to marry,' said Goldberg, 'but it doesn't mean that having that language on the books is not symbolic and meaningful to those of us who live in states like that.'