Analysis: 10 years after Obergefell, is a backlash brewing?

CNN

4 days ago

Marriage equality was a major political issue in the United States for a generation, but today it's no big deal.
The vast majority of Americans now believe same-sex couples should have the right to get married. But there are some new signs of a brewing backlash this year, and a very different Supreme Court could, at least in theory, take away what it gave same-sex partners 10 years ago.
Ten years ago this week, in 2015, the US Supreme Court gave same-sex couples access to marriage nationwide, which was controversial at the time but today seems obvious to a large portion of the country.
Seventeen years ago, in 2008, California voters voted to ban same-sex marriage in their state.
Twenty-one years ago, in 2004, President George W. Bush's reelection campaign won in part — maybe in large part — because Ohio was among 11 states that year where voters also approved state constitutional bans to outlaw same-sex marriage, potentially driving turnout.
That year, in CNN's presidential exit polls, just one-quarter of Americans thought same-sex couples should be able to legally marry. A larger portion approved of civil unions.
Twenty-nine years ago, in 1996, a Democratic president, Bill Clinton, signed the Defense of Marriage Act, which defined marriage as between a man and a woman.
But today, a decade after the Supreme Court's landmark Obergefell v. Hodges decision, close to 70% of Americans approve of same-sex marriage, according to some polls.
The country has done a 180.
'It's been transformative for so many people to be able to have a family that is recognized as a family under law,' said Mary Bonauto, who argued in favor of marriage equality before the Supreme Court and is senior director of civil rights and legal strategies at GLAD Law in Boston.
The decision changed lives for millions of Americans, Bonauto said: They can file taxes together, get health insurance together and plan for families together. In that regard, it strengthened marriage in the US.
Opposition to marriage equality has never been a part of President Donald Trump's populist political message, and it has gone largely unremarked that his Treasury Secretary Scott Bessent is a married gay man. Bessent is the first openly gay married man to be appointed by the Senate in a Republican administration.
But while Trump has no issue with same-sex marriage, there is a brewing backlash among religious conservatives.
► Southern Baptists, at their annual meeting this month, called for the passage of laws challenging the decision.
► Symbolic resolutions calling on the court to revisit Obergefell have been introduced in at least nine state legislatures.
► Efforts to create a new legal class of marriage — covenant marriage, based on conservative religious teachings — that would be between a man and a woman and make divorce more difficult, have sputtered, so far, in Missouri and Tennessee this year. For context, House Speaker Mike Johnson entered into a covenant marriage in Louisiana.
► Kim Davis, a former county clerk from Kentucky who drew nationwide attention when she defied court orders and refused to issue marriage licenses in 2015 after the Obergefell decision, is still fighting to have the Supreme Court revisit the decision.
There are Supreme Court justices who came to the bench decades ago, when opposition to gay marriage was a major political issue, who now — with a much more conservative court — would like to revisit the decision and take away nationwide marriage equality.
When the court overturned Roe v. Wade in 2022, Justice Clarence Thomas called on justices to also revisit Obergefell.
In answer, Democrats, who then controlled the House and Senate, worked with Republicans to pass a law, the Respect for Marriage Act, that voided the Defense of Marriage Act and would require states to honor marriage certificates in the unlikely event that the Supreme Court overturned Obergefell.
Justice Samuel Alito, another vocal critic of the decision, has also endorsed taking another look.
If Thomas and Alito were to get their wish, it's possible things could turn out differently. The ideological balance on the court has been upended in the past 10 years. Two justices who supported the majority in the Obergefell decision — Justice Anthony Kennedy and Justice Ruth Bader Ginsberg — have been replaced by more conservative justices.
But conservative does not necessarily guarantee a vote against gay rights. It was Justice Neil Gorsuch, who replaced Justice Antonin Scalia, who wrote a more recent landmark decision that extended federal civil rights protections to LGBTQ people. He has sided with Thomas and Alito in other decisions related to the LGBTQ community.
Bonauto said she's optimistic the decision will hold, but 'that optimism also rests on continued vigilance since there are those who seek to undo it.'
In opposing the Obergefell majority, Chief Justice John Roberts predicted that the court's action could actually mobilize opposition to same-sex marriage. Better to let states vote in favor of it in time, he argued.
'Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.'
He was wrong, according to public opinion surveys. Marriage equality is now the norm — although Gallup polling has shown Republican support declining over the past three years, from a peak of 55% in 2022 to just 41% this May.
Kristen Soltis Anderson, a Republican pollster and CNN contributor, wrote for the New York Times about polling she conducted with a coalition of GOP pollsters for the organization Centerline Liberties. 'Republicans remain very open to the idea that the government should not be in the business of meddling with or punishing people because they are gay or lesbian,' she concluded.
But that openness does not extend to the entire LGBTQ community, Anderson wrote, which was clear from how much Republican candidates, including Trump, focused on trans issues during the 2024 election.
'Republican voters seem to have made a distinction between the 'L.G.B.' and the 'T,' she wrote, noting opposition to things like gender-affirming care and trans women in sports.
I asked Bonauto if she sees any corollary between the very long fight for marriage equality and other LGB rights and the current fight for trans rights.
'What I see is that it was easy when people didn't know gay and lesbian Americans, bisexual Americans, to treat them as dangerous outsiders,' Bonauto told me. 'And I feel like that's what's happening with transgender people now, where so few people know a transgender person or have a transgender person in their family. It is, in fact, a small minority of people.'
Aggressive legal actions by states regarding trans rights today do somewhat mirror efforts to limit marriage rights years ago.
But Bonauto said she's an optimist.
'When you get to know people, it can be the beginning of a process of just sort of awakening to this idea of, okay, that's just another person.'
Americans, she said, tend to help one another once they get to know each other.