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10 years after same-sex marriage became legal, could the ruling be at risk? Here's where things stand, in 7 charts.
Same-sex marriage has become more common and more accepted. The Supreme Court is now being asked to overturn the case that legalized it nationwide.
The Supreme Court is being asked to reconsider its landmark ruling in Obergefell v. Hodges that legalized same-sex marriage across the country 10 years ago.
The challenge comes from Kim Davis, a former county clerk in Kentucky who was jailed for refusing to issue marriage licenses to same-sex couples in 2015. Davis is appealing a verdict that ordered her to pay $360,000 in damages to a couple who sought a license at her office. Lower courts have rejected her appeal, so she is now petitioning the Supreme Court to not only vacate the decision against her, but to vacate Obergefell entirely.
The ruling marked an enormous victory for the marriage equality movement, which steadily gained popular support and increased legal recognition in the preceding decades.
'The right to marry is a fundamental right inherent in the liberty of the person … couples of the same sex may not be deprived of that right and that liberty,' Justice Anthony Kennedy wrote in the majority opinion.
It's unclear whether the Supreme Court will even choose to consider Davis's case, let alone decide to overturn a major precedent that's barely over a decade old. But her petition marks the first real challenge to the ruling and comes at a time when opposition to same-sex marriage has been slowly gaining steam on the right.
Read more: Could the Supreme Court overturn same-sex marriage? This case hopes to roll back the ruling that made it legal.
A lot has changed in the ten years since Obergefell was decided. The number of married same-sex couples has nearly doubled, and a strong majority of Americans believe same-sex marriages should be legal.
Here's a snapshot of where things stand on same-sex marriage in America as the court considers whether to take up a case that aims to revoke nationwide marriage equality.
More marriages, more acceptance
From a purely practical sense, the Obergefell decision really only impacted the laws in a dozen states. The remaining 38 states and Washington, D.C., had already legalized same-sex marriage by that point, starting with Massachusetts in 2004. For that reason, the ruling didn't lead to a major spike in the number of same-sex marriages as much as it allowed an already growing trend to continue uninterrupted. As of 2023, the most recent year with available data, there were more than 770,000 married same-sex couples in America, according to the U.S. Census Bureau. While that's more than twice as many as there were in the year before Obergefell, it still represents just over 1% of all married couples in the U.S.
Legalization has changed the nature of same-sex partnerships. In 2008, there were three times as many unmarried same-sex households as married ones. When Obergefell was decided in 2015, it was essentially an even split. Today, 60% of same-sex couples who live together are married.
A persistent trend over the past 10 years has been women marrying other women at a higher rate than men marrying men. Though the difference isn't huge, it has resulted in 50,000 more lesbian marriages than gay marriages as of 2023.
As a group, people in same-sex marriages have some distinct differences from their heterosexual counterparts. They are about five years younger, on average, and earn about $10,000 more per year than opposite-sex couples, in part because they are more likely to both have college degrees and both be working. The biggest divide involves children. Just 17% of same-sex married couples have kids living at home, less than half the rate of opposite-sex couples.
Beyond simply making marriage more equal, legalization has had an 'unambiguously positive' impact on same-sex couples, according to a study published last year. That study found access to legal marriage has made same-sex couples healthier, more successful and more accepted by the communities around them — all of which also improves the lives of their children. They also found no evidence of negative impacts on opposite-sex marriages, despite longstanding warnings from opponents that same-sex marriage would somehow 'undermine' traditional partnerships.
Changing views
There are few issues in American politics that have seen such a dramatic shift in public opinion as same-sex marriage. It wasn't that long ago that the sitting president, George W. Bush, called for a constitutional amendment banning gay marriage to prevent 'weakening the good influence of society.' In the 2000s, voters in dozens of states — including deep blue California and Oregon — approved ballot measures defining marriage as between one man and one woman.
According to long-running polls by Gallup, support for same-sex marriage started steadily increasing in the late 1990s and has continued to trend upward ever since. It became the majority opinion for the first time in 2011 and kept ticking upward, to the point where 60% of Americans agreed with the Obergefell decision when it was handed down. That trend has continued over the past decade, though overall support may have peaked in the early 2020s and has even dipped slightly over the past few years.
Gallup's polling reveals huge partisan differences in opinions about same-sex marriage. Less than half of Republicans support it today, which marks a substantial drop from just a few years ago, when 55% of GOP voters said they were in favor. Still, the long-term story is that support for same-sex marriage among Republicans has nearly tripled over the past three decades.
Those differences in opinion also show up geographically. Same-sex marriage enjoys majority support in 48 states — the only exceptions being Oklahoma and Arkansas, where it's a 50/50 split — but there are massive gaps between the most and least supportive states.
How big is the risk to same-sex marriage?
Despite the clear legal and cultural progress that has been made on same-sex marriage, there are still concerns that Obergefell may be at risk of being overturned. If that were to happen, the legality of same-sex marriage would go back to being a state issue. In the past few years, four states — California, Hawaii, Colorado and Nevada — have eliminated their dormant bans so that same-sex marriage would still be legal if that were to happen. There's also some uncertainty about how the laws in a handful of states would operate in the absence of nationwide protections, but the overall result of Obergefell's reversal would be same-sex marriage instantly becoming illegal in dozens of states.
But how real is the risk that Obergefell might go away? In addition to Davis's challenge, there have recently been some other headline-grabbing calls from conservatives who want that to happen. Republican lawmakers in at least nine states have introduced bills aimed at chipping away at marriage equality, though none of those would have any legal heft as long as Obergefell stands. Despite those state-level moves, opposing same-sex marriage doesn't appear to be a priority for the GOP as a whole. President Trump has given varying answers on the issue over the years, including saying that he's 'fine' with same-sex marriage during his 2016 campaign.
In order to overturn Obergefell, the Supreme Court would have to be willing to hear Davis's case. Despite the court's rightward shift in recent years, many legal experts are skeptical that her petition poses a real threat to Obergefell.
'This just isn't the right vehicle for challenging a constitutional right to same-sex marriage,' Paul Collins, a professor of legal studies at the University of Massachusetts Amherst, told Newsweek.
Five of the nine justices who ruled in Obergefell are still on the court today. That includes Chief Justice John Roberts, who opposed the majority's decision in the case, writing in his dissent that 'The fundamental right to marry does not include a right to make a State change its definition of marriage.' Two other dissenting justices, Clarence Thomas and Samuel Alito, are also still in their seats. It's unclear how the other three conservatives on the court would rule if a challenge to Obergefell came before them. It's also not guaranteed that Roberts or Alito would land in the same place they did 10 years ago, especially given the implications of reversing a decision that has been the law of the land for a decade.
Thomas is the only conservative justice who has explicitly called for reconsidering same-sex marriage, which was one of several rights that were established in cases decided under the same legal reasoning as the now-defunct abortion protection in Roe v. Wade. So far, none of those other precedents — which include the right to privacy, the right to access contraception and the right to interracial marriage — have faced a serious challenge before the court.
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