In a week marked by both reassurance and uncertainty, the future of marriage equality in the United States has come under renewed scrutiny. Experts and legal advocates, however, are quick to emphasize that the U.S. Supreme Court is unlikely to overturn the right to same-sex marriage anytime soon—even as public debate simmers and high-profile interviews with Supreme Court justices draw national attention.
The immediate spark for these discussions came from Kim Davis, the former Kentucky county clerk who famously refused to issue marriage licenses to same-sex couples after the Supreme Court’s 2015 Obergefell v. Hodges decision legalized marriage equality nationwide. Davis, who spent six days in jail and paid hundreds of thousands in fines for her refusal, has continued her legal crusade, recently appealing to the Supreme Court in hopes of toppling the landmark decision. But legal experts say her case is on shaky ground and is unlikely to be taken up by the justices—let alone succeed.
“It is highly unlikely they will want to touch her case for lots of reasons,” Ezra Ishmael Young, a constitutional law professor in New York, told The 19th. “The vast majority of cases brought to the Supreme Court are long shots.” Karen Loewy, interim legal director of litigation at Lambda Legal, echoed this view, noting that even Justice Samuel Alito, a known critic of Obergefell, previously dismissed Davis’s case as unsuitable for overturning the precedent. “Even then, Justice [Samuel] Alito, who we all know would love nothing more than to reverse Obergefell, was like, ‘This is not a vehicle for that,’” Loewy explained.
Despite these reassurances, anxiety remains palpable among LGBTQ+ Americans. The past several years have seen a surge in anti-LGBTQ+ rhetoric and policy proposals, particularly within the Republican Party. The specter of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization—which overturned the constitutional right to abortion—has only heightened fears that other landmark precedents could be at risk. Even former Secretary of State Hillary Clinton weighed in, warning that marriage equality could be the next domino to fall.
Yet, as Loewy points out, “the law has not changed, and neither have the arguments for overturning marriage equality.” The legal foundation for Obergefell remains robust, and courts across the country have not signaled any appetite for reversing the decision. Young emphasized that there are “no state or federal court[s] saying trans people or gay people can’t have law licenses,” and that courts are not enforcing discriminatory rules in their own buildings.
Even in the highly unlikely event that Obergefell is overturned, the practical consequences for married LGBTQ+ couples would be far less severe than some fear. The 2022 Respect for Marriage Act, while not codifying same-sex marriage outright, does require states to recognize marriages performed in other states and protects all existing marriages. This means that queer married couples’ unions cannot be legally dissolved by state governments, and couples seeking to marry in the future would still be able to do so in the 15 states—and Washington, D.C.—that do not have same-sex marriage bans on the books.
“Marriage is kind of like an on/off switch,” Young explained. “You either have it or you don’t.” He also described the Respect for Marriage Act as a "poison pill"—the only federal statute that explicitly prohibits polygamy. If the Supreme Court were to strike it down, they would be opening the door to polygamy, something most justices would be loath to do. “They would not be able to chip away pieces of the Respect for Marriage Act easily either,” Young added.
Federal rights for same-sex couples would also remain intact, thanks to the 2013 United States v. Windsor decision, which struck down the federal Defense of Marriage Act. These rights were won independently of Obergefell, providing an additional layer of legal protection for LGBTQ+ families.
Still, experts caution that the symbolic impact of overturning Obergefell would be significant. “I think we’ll see a lot of emboldened discrimination,” Loewy warned, suggesting that such a move would send a chilling message about the nation’s values. Yet, as Young argued, the focus on marriage may distract from other pressing issues, such as increased immigration enforcement and the dehumanization of marginalized communities. “The white, non-immigrant, LGBT community, need to understand this government is in the process of dehumanizing others, and we need to be vigilant about that,” he said.
Against this backdrop of legal debate and societal tension, the Supreme Court has also been thrust into the public eye through a series of high-profile interviews. In the past week, CBS aired interviews with Justices Amy Coney Barrett and Sonia Sotomayor—Barrett’s first sit-down since joining the Court in 2020 and Sotomayor’s appearance on The Late Show with Stephen Colbert. While both Justices emphasized collegiality and urged Americans to read Supreme Court opinions in full, their comments on substantive issues offered a window into the Court’s current thinking.
Justice Barrett, in particular, addressed concerns about the Court’s so-called “emergency docket”—cases decided without full briefing or oral argument. She asserted, “We show our work. We are the only branch of government that’s totally transparent because we have to lay out all the reasons for the decisions that we make.” Yet, critics noted that recent emergency docket rulings, such as Chief Justice John Roberts’s unexplained stay in the case of Federal Trade Commissioner Rebecca Slaughter, lacked precisely the transparency Barrett described.
When pressed about the implications of the Dobbs decision for other rights—like contraception and same-sex marriage—Barrett’s answers were less than clear. She introduced a new standard, suggesting that fundamental rights are those “so firmly rooted in the minds of the American people that everyone would agree” they “go without saying.” Legal observers were quick to point out that such a standard is ambiguous and could be used to exclude rights not universally accepted at the time of the Fourteenth Amendment’s ratification.
Barrett also sidestepped distinctions made in the Dobbs opinion regarding fetal life and did not directly address whether rights like same-sex marriage are at risk. Her reluctance to define what would constitute a “constitutional crisis”—even suggesting that the U.S. has never truly faced one, not even during the Civil War—struck some as a sign of either caution or obliviousness to the current political climate.
For now, legal experts and advocates maintain that marriage equality is secure, bolstered by multiple layers of legal protection and a Supreme Court unlikely to revisit Obergefell in the near future. But the ongoing debates, both in and outside the Court, serve as a reminder that the struggle for equality and civil rights remains a live and evolving issue in American life.
As the nation watches both the courts and the culture, the fate of marriage equality stands as a litmus test for the country’s values and its willingness to protect the rights of all its citizens.
