Same-sex marriage is under attack by state lawmakers, emboldened by Trump’s anti-LGBTQ+ measures and the Supreme Court’s willingness to overturn precedent

Same-sex marriage, which the U.S. Supreme Court in 2015 legalized nationwide in the case known as Obergefell v. Hodges, is facing resurgent hostility.

In the decade since the court’s decision, public support for same-sex marriage has increased. Currently, about 70% of Americans approve of legally recognizing the marriages of same-sex couples, a 10-percentage-point bump from 2015.

Obergefell led to an increase in marriages among same-sex partners, with more than 700,000 same-sex couples currently married.

Despite this, Republican lawmakers in five states have recently introduced symbolic bills calling on the Supreme Court to overturn its ruling in Obergefell.

And Republican lawmakers in two states have proposed legislation that creates a new category of marriage, called “covenant marriage,” that is reserved for one man and one woman.

As a professor of legal studies, I believe such attacks on same-sex marriage represent a serious threat to the institution.

And others share my concern.

A 2024 poll of married same-sex couples found that 54% of respondents are worried that the Supreme Court might overturn Obergefell, with only 17% saying they did not anticipate such a challenge.

Recognizing this fear, Democratic legislators in Michigan have called for the state to pass a ballot initiative to protect same-sex marriage. The initiative would repeal a part of the state constitution that banned same-sex marriage, but which was invalidated by the subsequent Obergefell decision. If Obergefell were overturned, that ban in the Michigan constitution would go into effect again.

And a law firm in Missouri is helping LGBTQ+ couples establish medical power of attorney plans in the event Obergefell is reversed.

Here’s what’s known about the current attacks on same-sex marriage.

Currently, two types of legislation have been introduced by Republican state lawmakers.

First, symbolic legislation that calls on the Supreme Court to overturn Obergefell has been introduced in Idaho, Michigan, Montana, North Dakota and South Dakota.

This legislation is symbolic, since state legislatures do not have control over what the Supreme Court does. And even if it passes, the legislation does not directly threaten the legality of same-sex marriage in those states because it does not address those states’ marriage laws.

But if it becomes law, this legislation sends a clear signal that, should Obergefell be overturned, these states could quickly enact legislation banning same-sex marriage. For a state such as Michigan, whose constitutional language defining marriage as between one man and one woman is still on the books, the status quo would revert immediately to outlawing same-sex marriage – it wouldn’t require any legislative vote.

Second, lawmakers in Missouri and Tennessee have introduced legislation that would create a new category of marriage that would be available only to opposite-sex couples. So-called “covenant marriage” would require that the couples who choose this kind of marriage undergo counseling prior to getting married and creates significant obstacles to getting divorced, except under very specific circumstances, such as spousal abuse.

Tennessee’s sponsor of the legislation, Rep. Gino Bulso, a Republican, was quoted on Knoxnews.com as saying his legislation “seeks to challenge the U.S. Supreme Court’s egregiously wrong 2015 decision in Obergefell v. Hodges.” According to Bulso, “The bill is not ‘anti’ anything or any person. It simply recognizes the natural order of things.”

Since this version of covenant marriage excludes same-sex couples, they would be denied access to covenant marriages, although they would still have access to more traditional forms of marriage.

Efforts by state Republican lawmakers to revisit same-sex marriage bans are part of a broader assault on LGBTQ+ rights taking place in the U.S.

The timing of these efforts is primarily driven by two factors: Donald Trump’s second term as president and the Supreme Court’s 2022 decision in Dobbs v. Jackson, which overturned the constitutional guarantee of the right to an abortion.

During his first term in office, Trump enacted policies harmful to the LGBTQ+ community, particularly involving health care and transgender rights.

But the Biden administration reversed most of these policies.

In his second term, Trump has upped his hostility to the LGBTQ+ community, following an election campaign in which he made transgender rights a wedge issue. This includes canceling more than US$125 million in federal grants related to LGBTQ+ health programs and stopping the enforcement of the Equal Access Rule, a federal policy that ensured access to federal housing programs regardless of gender identity.

In turn, this has emboldened Republican lawmakers to target same-sex marriage and other protections for the LGBTQ+ community.

The Supreme Court’s decision to overrule Roe v. Wade in Dobbs v. Jackson is the other key factor motivating the timing of attacks on same-sex marriage.

In Dobbs, the court’s conservative majority indicated its willingness to revisit – and overrule – precedents that it disagreed with, even if those precedents were supported by a large majority of the public, as was the case for Roe.

In addition, Supreme Court Justice Clarence Thomas wrote a concurring opinion in Dobbs in which he argued that the Supreme Court should apply the logic used to overrule Roe to reconsider other decisions, including Obergefell. Although Thomas’ concurring opinion does not have the force of law, it nonetheless sent what some court observers say is a clear message to opponents of same-sex marriage that at least one justice has an appetite for reconsidering Obergefell.

Should the Supreme Court agree to hear a challenge to Obergefell, one of two main outcomes is likely.

First, the court could reaffirm Obergefell. This would probably put an end to most Republican attacks on same-sex marriage and would maintain the status quo by prohibiting states from outlawing same-sex marriage.

It would also serve to make the Supreme Court appear moderate, which may enhance its near historically low public approval ratings.

Second, the court could overrule Obergefell. If a majority of justices did so, I believe they would almost certainly use the same logic employed to overturn Roe v. Wade. That is, the court’s conservative majority could argue that the Constitution does not recognize marriage as a fundamental right, and therefore it is up to the states to regulate and define marriage, including prohibiting same-sex couples from obtaining marriage licenses.

Under the Respect for Marriage Act, however, signed into law by President Joe Biden in 2022, states outlawing same-sex marriage would have to recognize same-sex marriages performed in other states, as would the federal government.

The bottom line is that Trump’s second term and the Supreme Court’s conservative activism have lit a fire in some Republican lawmakers, who are targeting same-sex marriage as part of a broader attack on LGBTQ+ rights.

If successful, these efforts would be a dramatic blow to the progress made toward LGBTQ+ equality over the past two decades.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Paul M. Collins Jr., UMass Amherst

Paul M. Collins Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.