Could obergefell v hodges be overturned

While some saw this as progress in solidfying federal civil rights protections for LGBTQ people, Sears and others see complexity, especially as recent data has shown increased support among Republicans for restrictive bathroom bills.

“There are still those who are very committed to a faith-based morality that excludes LGBTQ people, and we’re seeing that play out with ferocious anti-transgender policies,” Sears said.

Its amicus brief in the Obergefell case was instrumental, with Justice Anthony Kennedy citing data from the institute on the number of same-sex couples raising children as a deciding factor in the landmark decision.

“There were claims that allowing same-sex couples to marry would somehow devalue or diminish marriage for everyone, including different-sex couples,” said Brad Sears, a distinguished senior scholar of law and policy at the Williams Institute.

“That doesn’t mean they’ll necessarily pay attention to the strength of these arguments.”

The future of anti-discrimination policies

Last year, at President Donald Trump’s urging, the GOP’s 2024 platform removed language condemning same-sex marriage, and only devoted a few sentences to the subject. First, they wrote, she didn’t make the “current version” of her First Amendment argument until relatively late in the game – in her reply in the 6th Circuit, “filed nine years into the case.

In a separate case regarding her refusal to issue any marriage licenses, U.S. District Judge David Bunning ordered Davis to issue the licenses to both gay and straight couples. Hodges, a local county clerk from Kentucky made national headlines when she refused on religious grounds to issue a marriage license to a gay couple, David Moore and David Ermold.

On Nov. 7, the Supreme Court will consider a request from that clerk, Kim Davis, to overturn their 2015 decision. Justice Anthony Kennedy, delivering the majority opinion, emphasized that the institution of marriage is a fundamental right and that excluding same-sex couples from this institution demeans their dignity.

The decision was celebrated as a victory for equality, but it also faced significant backlash, particularly from religious and conservative groups.

Justice Samuel Alito has echoed those sentiments, tacitly inviting legal challenges.

Despite the direction of the Supreme Court, Sears argues that Obergefell is not on the same legal footing as Roe v. There’s a sense of unease as state and federal lawmakers, as well as several judges, take steps that could bring the issue back to the Supreme Court, which could undermine or overturn existing and future same-sex marriages and weaken additional anti-discrimination protections.

In its nearly quarter century of existence, the Williams Institute at UCLA School of Law has been on the front lines of LGBTQ rights.

Hodges, the Supreme Court case that made same-sex marriage legal nationwide, is different. She told the couple that she was acting “under God’s authority” and that they could get a marriage license in a different county.

Moore and Ermold filed a lawsuit against Davis, alleging that she had violated their constitutional right to marry. A recently released study from the Williams Institute found that the number of married same-sex couples has more than doubled since the Obergefell decision. In the 2024 study “Perspectives on Marriage Equality,” the vast majority of married same-sex couples surveyed reported that marriage improved their sense of security and resulted in greater life satisfaction and a closer relationship with their spouse.

 

Additionally, the positive impacts of their nuptials on an economic level were significant: an estimated $5.9 billion for state and local economies and $432.2 million in state and local tax revenue.

Thanks to years of work by LGBTQ organizations, positive public opinion around marriage equality and LGBTQ rights in general continues to be strong in the U.S.

“The incredible amount of social support that LGBTQ communities have built over the past few decades remains, as well as legal protections in many states that did not exist even a few years ago,” Sears said.

Still, in the current political climate, the majority of married same-sex couples surveyed by the institute worry about the future of marriage equality and its possible return to the Supreme Court.

I’m hoping we’re on the same trajectory for transgender people.”

While Sears believes the legal arguments in favor of Obergefell are strong, he adds a note of caution.

“We still have this Supreme Court,” he said. So this extension of reliance extends far beyond the couple.”

Although support has dipped slightly in recent years among subsets of the population, public opinion polls have shown enduring majority support for same-sex marriage.

“The backlash against same-sex marriage created a national discussion, and then it became a political possibility,” Sears said.

After the Supreme Court’s decision in Obergefell, Kentucky’s governor at the time, Steve Beshear, sent a letter to the clerks in all of the state’s counties, directing them to “license and recognize the marriages of same-sex couples.”

Although a county attorney told Davis that she would be required to issue marriage licenses to same-sex couples, Davis opted instead to stop issuing marriage licenses to anyone – gay or straight.

As a general practice, the court does not grant review without considering a case at at least two consecutive conferences. However, recent shifts in the judicial and political landscape have sparked discussions about the stability of this landmark ruling. Instead, she merely contends that it “was wrong when it was decided and it is wrong today.”

Whether the court will grant review really boils down to whether there are four votes to take up the question.

Wade, rescinding the national right to abortion and raising fears for progressive policies.

In a concurring opinion, Justice Clarence Thomas explicitly called for the Court to revisit Obergefell.