What Would It Really Take To Overturn Obergefell?

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Daily Caller News Foundation

WASHINGTON — “Gay marriage did that,” Katie Faust, founder of Them Before Us, repeated for the eighth time to an audience at the recent National Conservative Conference.

She wasn’t raising tired talking points about the landmark Obergefell v. Hodges ruling undermining federalism or religious liberty. She was lamenting how gay marriage upended children’s rights.

Voices like Faust’s calling for a reckoning with the effects of Obergefell are increasingly gaining traction among some conservatives. NatCon’s “Overturn Obergefell” panel, which came weeks after the filing of a longshot Supreme Court petition, reflected rising hope that the culture is trending towards reversal.

“The last 10 years have made one thing unmistakably clear,” Faust said. “We can either recognize gay marriage, or we can recognize a child’s right to their mother and father. We can’t do both.”

The Supreme Court will consider in the coming weeks whether it will take up a formal request to reverse Obergefell, the first it has received since 2015. Kentucky county clerk Kim Davis, who was thrown in jail after declining to issue marriage licenses based on a religious objection to the 2015 ruling, argued in her petition filed in July that Obergefell’s “legal fiction of substantive due process” must be reversed.

The question is, are there enough votes on the bench? Many court watchers are skeptical.

“The petition is nonsense and stands no chance of being granted,” Ilya Shapiro, director of Constitutional Studies at the Manhattan Institute, told the Daily Caller News Foundation. “There are not five votes to overturn Obergefell and even if there were, there’s no way that the Court would use this case to do it.”

‘Very Long Road’

The Sixth Circuit Court of Appeals upheld a judgement in March keeping Davis on the hook for $100,000 in emotional damages and $260,000 in legal fees owed to a gay couple who sued over her refusal to issue a license, rejecting her First Amendment and qualified immunity claims.

Davis previously brought her case to the Supreme Court in 2020 on the question of qualified immunity, without explicitly asking them to overrule Obergefell. The justices declined to take it at the time, but Justice Clarence Thomas wrote separately to highlight how Davis’ case provided “a stark reminder of the consequences of Obergefell.”

“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” Thomas wrote.

Thomas also suggested in his Dobbs v. Jackson Women’s Health Organization concurrence that Obergefell should be reconsidered. Yet the Dobbs majority explicitly wrote that nothing in its opinion “should be understood to cast doubt on precedents that do not concern abortion.”

The justices receive between 7,000-8,000 petitions each year but hear less than 100. Four justices are needed to agree to hear a case, and five are needed to win.

Davis’ attorney, Liberty Counsel chairman Mathew Staver, told the DCNF there are three justices who have already “expressed very strong opinions” against Obergefell.

Chief Justice John Roberts wrote in his Obergefell dissent that the majority imposed “an act of will, not legal judgment.” It was the only dissent he has ever read from the bench, Staver noted.

“My only question is if [Robert’s] view of protecting the institution of the court and his devotion to stare decisis going to lead him to say, well, we can’t take it,” John Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, said during the NatCon panel.

The Supreme Court did call for a response to Davis’ petition, which Eastman suggested signals “they’re very interested in the case,” although he doubts they would address her broad request to overturn Obergefell.

“They’re much more incremental than that, and if they could decide it just on a religious liberty claim, I think they probably would,” Eastman said.

South Texas College of Law Houston professor Josh Blackman told the DCNF there is “a very long road to overruling Obergefell.”

“You would need some local government to deny marriage licenses, or marital benefits to a same-sex couple,” he said. “Then the lower courts would be required to follow Obergefell and find the government acted unlawfully. At that point, you would need four Justices who are willing to grant cert and reverse Obergefell. I see that as very unlikely.”

While some have pointed out that the Supreme Court did what seemed unthinkable by overturning Roe v. Wade in 2022, court watchers knew “literally for decades that there was a big chance Roe would go,” Cato Institute fellow Walter Olson wrote in comments shared in Reason.

“Overturning it was the number one project for much of the legal Right through countless confirmation battles,” he said. “Thousands of anti-Roe meetings were held and articles published. There is no comparable head of steam on Obergefell, or really any head of steam at all.”


Shifting Culture?

Davis’ petition still set off a media firestorm, sparking pieces warning about the end of “gay rights.” Hillary Clinton predicted in August on the “Raging Moderates” podcast that the Supreme Court would “do to gay marriage what they did to abortion.”

Public support for gay marriage remains higher than it was in 2015, at 68%, according to a May Pew Research poll. Yet among Republicans, there has been a 14% drop in support since 2022.

At the same time, the LGBTQ movement has exploded, with 23% of Generation Z now identifying as something other than heterosexual, according to a 2024 Gallup poll.

The Supreme Court has been forced to face a number of other gender ideology related issues: in June, it ruled in favor of state efforts to ban transgender procedures for minors. The justices have already agreed to consider cases on banning men from women’s sports during the coming 2025-2026 term.

Idaho’s house passed a resolution in January calling on the Supreme Court to reconsider Obergefell, as did North Dakota lawmakers in February, though it was rejected in the state Senate. Similar measures have been introduced in at least three other states.

The Southern Baptist Convention similarly voted for the first time in June to call for a reversal of the ruling.

The NatCon panelists, who spoke to a large room that was less than half-full, observed a “vibe shift” in the culture.

Downstream effects of gay marriage, from enabling two men to have an unrelated child through surrogacy arrangements to the weakening of legal protections for biological parents, hurt children, Faust argued during the panel.

“Any conservatism worthy of the name must commit itself to removing this poison from our law,” Jeff Shafer, director of the Hale Institute, said on the panel.

A panel discussion on the topic would have been “unthinkable” five years ago, when “most mainstream conservative organizations wouldn’t broach the subject,” Ethics and Public Policy Center fellow Andrew T. Walker wrote on X.

“But people kept making the arguments, so here we are,” he said. “Who knows what the next ten years will bring in helping overturn this rogue, anti-reality ruling.”

While lawyers on stage remain uncertain the Supreme Court will fully address it now, they are hopeful that day will come.

“The culture is changing,” Eastman told the audience. “I got a meme in an email the other day. It was Nancy Pelosi buying stock in baby goods stock futures because of Taylor Swift’s engagement to Travis Kelce. Maybe marriage is gonna make a comeback.”

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