Will Supreme Court Overturn Gay Marriage? How Obergefell Could Fall

The Supreme Court could overturn its landmark 2015 ruling that established a nationwide right to same-sex marriage if a case addressing the matter is brought before it, experts told Newsweek.

Why It Matters

Last month, Idaho lawmakers approved a resolution that called for the Court to undo its Obergefell v. Hodges decision that declared a constitutional right for same-sex couples to marry.

After President Donald Trump appointed three conservative justices to the Court in his first term, cementing a 6-3 conservative supermajority, the Court overturned Roe v. Wade in 2022 stripping away the constitutional right to an abortion. Since then, there have been concerns that the Court's conservative justices could do away with other rights, including the right to same-sex marriage.

Clarence Thomas and Samuel Alito, two conservative justices who dissented in Obergefell v. Hodges, have suggested that the decision should be reconsidered.

What To Know

Gallup polling shows that a majority of Americans continue to believe marriage between same-sex couples should be legal (69 percent), though support has declined slightly from the record high of 71 percent recorded in 2022 and 2023.

The polling found a wide partisan gap in support of same-sex marriage, with 83 percent of Democrats in support, compared with just 46 percent of Republicans.

What Is Obergefell v. Hodges?

The Supreme Court's decision in the Obergefell v. Hodges case declared a constitutional right for same-sex couples to marry.

In a 5-4 vote, the Court held that the 14th Amendment's guarantees of due process and equal protection under the law "requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State."

Experts Say How Court Could Revisit Obergefell

Kate Shaw, a law professor at the University of Pennsylvania Carey Law School and constitutional law scholar, told Newsweek that the resolution from Idaho lawmakers "seems purely symbolic" since the Court can revisit Obergefell only if there is a "live dispute."

"The Supreme Court can only decide 'cases' and 'controversies,' so it can't revisit a precedent like Obergefell without a live dispute," Shaw said.

She continued: "This Idaho resolution seems purely symbolic or expressive. But if a state sought to go further—to pass or enforce a law that limited marriage to opposite-sex couples, in clear violation of Obergefell—a challenge to that law could quickly make its way to the Supreme Court."

It would be difficult to overturn the decision in Obergefell unless there was a case where the issue of same-sex marriage was "specifically raised," Lawrence Friedman, a law professor at Boston's New England Law and author of Modern Constitutional Law, told Newsweek.

"For the Court to overturn its decision in Obergefell, it would have to hear a case in which a party is arguing for that result," he said.

Friedman said if such a case were to arrive at the Court, the argument for overturning Obergefell would likely track with what Thomas outlined in a concurring opinion in the ruling in Dobbs v. Jackson Women's Health Organization, the case that overturned Roe.

"Namely, that the due process clause of the 14th Amendment does not contemplate the protection of a right of a consenting adult to marry a person of the same sex," he said. "He indicated in that decision that he does not believe due process protects any such interest."

In that opinion, Thomas called on the Court to review its other precedents, including what he called the "demonstrably erroneous" rulings protecting same-sex marriage, gay sex and the use of contraceptives.

Geoffrey Stone, a law professor at the University of Chicago and expert on constitutional law, told Newsweek that he has "little doubt" that court's six conservative justices disagree with the decision in Obergefell.

"Those six justices have made quite clear their willingness to overrule decisions with which they disagree, most obviously on the issues of abortion and affirmative action," he said.

"On the other hand, I hope that at least some of these justices care about the credibility of the Court as an institution as not driven by partisanship or by the personal or political views of the justices when they disagree with precedent."

Stone added: "My cautious guess is that enough of the Republican-appointed justices will want to maintain the understanding of the Court as a non-political body that at least two of them (and perhaps more) will decline to overrule Obergefell."

Shaw also said she doesn't believe there are five votes to overturn the Obergefell decision.

"But the changed composition of the Court since Obergefell, Justice Thomas' Dobbs concurrence explicitly calling on the Court to reconsider Obergefell, and the majority opinion in Dobbs—which called into question the Court's reasoning in cases like Obergefell—definitely suggests that constitutional protections for marriage equality are vulnerable to attack," she said.

What's Next

A case that specifically addresses same-sex marriage could come before the Supreme Court and affect the Obergefell decision, but it's not known when that might happen.