The U.S. Supreme Court ruled ten years ago today that the Constitution protects the right of same-sex couples to get married. A supermajority of Americans—more than two-thirds—supports marriage equality, but anti-LGBTQ religious-right groups and their allies are determined to dismantle it.
The Court’s pro-equality ruling in Obergefell v Hodges effectively overturned state marriage bans that had been enacted across the country. The same forces that pushed those bans are using the anniversary of the marriage equality ruling to boost their legal and political attacks on legal equality for same-sex couples.
Overturning Roe v Wade took anti-abortion activists 50 years, but religious-right groups are hoping to dispatch legal marriage equality much more quickly thanks to shifts on the Supreme Court over the past ten years, with three Trump justices fortifying the far-right flank. Republican state legislators are giving them a hand by trying to pass anti-equality laws that would be challenged in court, giving the Court a chance to reverse Obergefell.
The fact is that anti-equality leaders have never accepted the legitimacy of the Obergefell ruling. They were making plans to overturn it even before the decision was announced. Ryan Anderson—then at the Heritage Foundation and now president of the right-wing Ethics and Public Policy Center—published a long-term game plan for overturning Obergefell, using the successful long-term campaign against Roe as a model. As People For the American Way President Svante Myrick has noted, “Authoritarians have a pattern of chipping away at rights until they win the big prize.”
The right-wing legal giant Alliance Defending Freedom wants to eliminate marriage equality as part of its “generational wins” strategy. ADF’s opposition to marriage equality is part of its long-term hostility to LGBTQ people and their rights, which included urging the Supreme Court to uphold state laws that made being gay a crime; the Court overturned state “sodomy” laws in its 2003 ruling in Lawrence v. Texas.
Another right-wing legal group, Liberty Counsel, is actively urging the Supreme Court to use a case the group is pushing to overturn Obergefell altogether. Liberty Counsel has been representing Kim Davis, a Kentucky county clerk who refused to marry a gay couple after the Supreme Court’s ruling, for more than a decade. They are currently asking justices to overturn an appeals court ruling that upheld a jury verdict awarding damages to the couple Davis refused to serve. Liberty Counsel places its hopes in part on the strident dissent from Obergefell from Chief Justice John Roberts. Justice Clarence Thomas urged the court to consider in his concurring opinion in Dobbs.
Liberty Counsel falsely claims that there is a “growing consensus” that Obergefell should be overturned—citing a recent vote by the conservative Southern Baptist Convention—but if there is any consensus among the public, it is in favor of equality and legal protections for same-sex couples and their families. In 2022, over the objections of ADF and other anti-equality groups, a bipartisan Congress passed and President Joe Biden signed into law the Respect for Marriage Act, which sought to protect same-sex couples if Obergefell is overturned; it requires states to recognize marriages by same-sex couples and interracial couples that were legally performed in equality affirming states.
