Topline
The Supreme Court could consider whether to overturn its landmark ruling legalizing same-sex marriage this term after the court was asked to hear a case on the issue—but the court hasn’t yet taken any action on the case, and it remains to be seen whether they’ll take it up, which they’re not required to do.
Joseph Fons holds a LGBTQ Pride Flag in front of the U.S. Supreme Court building in Washington, DC, June 15, 2020.
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Key Facts
A case was filed at the Supreme Court in July that expressly asks the court to overturn its precedent in Obergefell v. Hodges, a 2015 ruling that legalized same-sex marriage nationwide.
The case was brought by Kim Davis, a Christian former clerk who gained notoriety and briefly landed in jail in 2015 for refusing to issue marriage certificates to same-sex couples following the Obergefell ruling.
Davis has asked the court to determine whether Obergefell should be overturned, as part of a lawsuit that protests the alleged discrimination against her for refusing to issue same-sex marriage certificates.
The case has been filed at the Supreme Court, but that is not an indication that the case will actually be decided by the justices, as the court only takes up a small fraction of the total cases it’s asked to hear.
The court has scheduled the case to be considered at the justices’ conference on September 29, meaning a decision on whether or not the court will hear the case won’t come until October at the earliest.
Will The Supreme Court Hear The Same-Sex Marriage Case?
It’s unclear. After ABC News reported Monday on Davis’ petition, numerous posts online claimed the Supreme Court was set to decide the issue, including by prediction market Polymarket. But that’s not accurate, as justices have so far given no indication either way on whether or not they’ll hear the case. The court previously rejected Davis’ last petition to the Supreme Court in 2020, which challenged her punishment for refusing to perform same-sex marriages.
When Could The Supreme Court Decide The Same-Sex Marriage Case?
Though Davis’ case is set to be discussed at the court’s conference in late September, it’s unclear when a decision could come out about whether justices will hear the case. The court will often re-list particularly controversial cases so they’re considered at multiple conferences, meaning the court could spend weeks to months deciding whether the case should be heard. If justices do decide to take up the case, oral arguments would take place likely at the end of 2025 or in early 2026, with a decision coming out before the court’s term ends in late June or early July 2026.
What Have Supreme Court Justices Said About Overturning Obergefell V. Hodges?
Some of the court’s most conservative justices have suggested they’re eager to review the court’s precedent on same-sex marriage, but there’s so far no clear indication that a majority of justices on the 6-3 conservative court would vote to overturn the landmark case. In a concurring opinion when the Supreme Court overturned Roe v. Wade and its protections on abortion in 2022, Justice Clarence Thomas suggested Obergefell and other landmark cases could be overturned next, noting the same-sex marriage case was based on the same legal theory as Roe. Though Justice Samuel Alito’s opinion overturning made clear the court’s ruling only applied to abortion and not to other cases, Thomas said the same-sex marriage case and others relying on the same legal arguments are “erroneous” and the court has “a duty to ‘correct the error’ established in those precedents.” When the Supreme Court rejected a previous petition Davis submitted to the court in 2020, Thomas and Alito also filed an opinion decrying the Obergefell ruling, saying it “threaten[s] religious liberty.” Because of the decision, “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws,” Alito and Thomas wrote.
What Happens If Same-Sex Marriage Is Overturned?
If Obergefell v. Hodges is overturned, same-sex marriages will still have some federal protections. Congress passed the Respect for Marriage Act in 2022, which requires all states to recognize same-sex marriages, as long as they were performed legally in a state where same-sex marriage was allowed. It also requires states to recognize marriages despite race or ethnicity, and repealed a previous law that denied federal spousal benefits to same-sex couples. Obergefell getting repealed would mean states would no longer be required to allow same-sex marriages to take place in the state, however, meaning same-sex couples may only be able to get married in certain states, even if their marriage could be legally recognized across the country.
Key Background
Democrats and LGBTQ advocates have been fearful of what will happen to protections for same-sex marriage since the Supreme Court overturned Roe v. Wade in 2022 and allowed states to outlaw abortion. Public trust in the Supreme Court has plummeted as the conservative-leaning court has issued a number of decisions in recent years that align with right-wing priorities, including giving more legal cover to President Donald Trump, loosening gun restrictions and letting business owners deny services to LGBTQ customers. Davis’ petition to the Supreme Court comes as the Trump administration has broadly taken aim at LGBTQ rights in recent months, including by passing orders that restrict transgender rights—including reinstating the transgender military ban—attacking diversity, equity and inclusion efforts and taking steps like ending support for LGBTQ callers to the national suicide prevention hotline.
