Ten Years After Obergefell: Is Same-Sex Marriage Safe?

On June 26, 2015, the Supreme Court issued its historic decision in Obergefell v. Hodges, overturning state laws barring same-sex couples from receiving marriage licenses. Justice Anthony Kennedy’s decision for the 5-4 majority seemed to end a 20-year battle launched by conservatives to prevent marriage equality.

For a minute, the country was awash in same-sex wedded bliss. Straight America celebrated gay couples—on sitcoms, in politics, as icons. Pride gear dotted the aisles of Target, Old Navy, and other big-box retailers.

Yet in the 10 years following Obergefell, LGBTQ individuals witnessed the highest rate of anti-LGBTQ legislation introduced in Congress and the states, with several consecutive record-breaking years. Gay and lesbian couples may be largely out of the closet, but attacks on their rights—and those of others in the LGBTQ community—have never been more prominent. Even anti-LGBTQ legislation and policies that failed in the heyday of the pre-Obergefell anti-marriage movement are being resurrected across municipalities, states, and the federal government as Donald Trump’s second term unfolds. Combined with a new coalition of conservative Supreme Court justices (Sonia Sotomayor and Elena Kagan are the only ones from the Obergefell majority still deciding cases), this has created an uncertain, unstable, and at times unwelcome political foundation for LGBTQ rights.

A Conservative Offensive

Gay and lesbian couples were the clear victors in the 20-year march toward marriage equality, in legal acceptance as well as public opinion. Popular support for same-sex marriage skyrocketed from 27 percent in 1996 to 60 percent by the time the Court heard arguments in Obergefell. Ten years later, support for marriage equality hovers around 68 percent. Same-sex couples are out in conservative spaces, raising families and openly participating in their communities. Many states followed Obergefell by implementing measures to protect same-sex couples and to prevent discrimination against LGBTQ residents. Also, openly LGBTQ political candidates are now finding traction in mainstream politics.

Ironically, marriage equality owes its success to the Christian Right. In 1992, shortly after the Supreme Court’s reaffirmation of abortion rights in Planned Parenthood v. Casey, conservatives sought a new issue to catalyze their base. That August, Pat Buchanan took the stage at the Republican National Convention to sound the alarm against same-sex marriage. “We must stand with [President George H.W. Bush] against the amoral idea that gay and lesbian couples should have the same standing in law as married men and women.”

At that time, national gay rights organizations had no plans to pursue marriage equality. Some prominent gay rights leaders publicly questioned the value of marriage as an institution. Nevertheless, Buchanan’s words pushed conservative voters into a panic and gay rights organizations into the fray.

By 1996, Congress had passed the Defense of Marriage Act (DOMA), which limited marriage to heterosexual couples and allowed states to do the same. By the end of that year, more than 20 states had legislative bans on their books. Within 10 years of DOMA’s passage, 44 states had constitutional amendments or statutes barring marriage equality.

In the aftermath of Obergefell in 2015, conservatives searched for loopholes in the landmark ruling. Immediately after the decision, Kim Davis, then the clerk of Rowan County, Kentucky, rejected the Court’s requirement to issue marriage licenses. Wedding photographers, videographers, venues, and cake decorators argued that the First Amendment protected their right to refuse wedding-specific services to marrying gay couples.

Conservative plaintiffs similarly tested parenting laws. States questioned whether the right to marry required both partners to be included on their children’s birth or death certificates or whether adoption agencies were now compelled to accept required married gay couples as clients.

Under Kennedy’s ruling, the Court struck a middle ground in these early post-marriage rulings. While clerks could not refuse to issue marriage certificates based on their religious opposition to same-sex marriage, and states must include married same-sex parents on their children’s vital records, wedding service providers had more latitude. The Court (under Kennedy and after his departure) determined that the First Amendment exempted photographers, videographers, cake decorators, and adoption agencies from having to work with same-sex clients.

A Second Front

Conservatives may have lost the battle over marriage equality, but they galvanized their base. Buoyed by the success of their anti-marriage campaign, conservatives sought other platforms to provoke voter engagement.

Conservative leaders revisited a page out of a well-worn playbook and pointed to children as the primary victims of LGBTQ progress. Schools and libraries became scapegoats.

Groups like Moms for Liberty frequently attend school board and PTA meetings demanding a ban on books or curricula referencing LGBTQ concepts, language, stories, characters, or notable figures. When opportunities arose, conservative activists ran for school boards. According to a Brookings Institution study, in 2023, 51 percent and 35 percent of Moms for Liberty-endorsed candidates prevailed in purple and blue counties, respectively, on a platform of book bans and “anti-woke” curricular reforms.

This was not a new strategy. Conservative leaders had focused on school-age books leading up to Obergefell as they attempted to compel moderate voters in blue states to pass state constitutional amendments barring marriage equality. Narratives about the virtues of “traditional marriage” failed to activate voter majorities in blue states. But conservatives succeeded by arguing that, because of marriage equality, school-aged children would be forced to read books or learn about gay couples or same-sex-headed families from their teachers.

After Obergefell, these arguments inspired a second front in the battle against LGBTQ rights, especially in Florida, where Moms for Liberty originated. Book banners garnered the support of Governor Ron DeSantis, who centered his failed bid for the 2024 Republican presidential nomination on a slate of school-based anti-LGBTQ policies. DeSantis, who boasted that the Sunshine State is where “woke goes to die,” signed laws and executive measures limiting whether and how K-12 and university students, teachers, and librarians could reference topics or provide resources related to gender identity or sexuality.

These so-called “Don’t Say Gay” bills first emerged in the 1990s. Groups like the Oregon Citizens Alliance proposed county and state ballot measures prohibiting public funds from “in any way condoning homosexuality.” The group convinced voters in over 20 counties to pass such bills and nearly won a statewide ballot measure. Similar efforts by conservatives in statehouses picked up in the aftermath of Obergefell.

Lawmakers combined “Don’t Say Gay Bills” with a crowd of other anti-LGBTQ bills to launch record-breaking years for LGBTQ rights rollbacks at the state level. Bills that outlaw gender-affirming bathrooms, health care, or vital records. Legislation targeting transgender youth athletes. Policies supporting the rights of health care providers to refuse to work with LGBTQ couples or families. Regulations barring schools from acknowledging student pronouns and name changes or adopting practices that address LGBTQ-centered bullying. In fact, between 2016 and 2024, more than 150 anti-LGBTQ bills were signed into law.

Courts, too, are weighing in. Thanks to efforts by Alliance Defending Freedom, the Supreme Court will consider the constitutionality of state laws barring conversion therapy–a practice that is outlawed in 27 states and more than 100 municipalities and is linked to increased rates of suicidality among LGBTQ young people.

Anti-LGBTQ groups, like the Alliance Defending Freedom, have played an essential role in this second front. The Southern Poverty Law Center, a group that tracks US-based hate groups, noted an increase in the number of anti-LGBTQ groups, specifically over the past two years. These groups are especially adept at courting judges and CEOs as lucrative supporters of anti-LGBTQ reforms. In 2024, Target, an especially prominent supplier of LGBTQ-positive merchandise, responded to these efforts by scaling back its affirming inventory. In 2025, Target joined Nissan, Walmart, Pepsi, Lowe’s, and numerous other large retailers that diminished or withdrew their support for Pride events.

This hostile policy and advocacy climate buttresses an equally hostile social context for LGBTQ communities. Hate-based violence against LGBTQ individuals is on the rise. The FBI reports an increase over the past two years in both the frequency and the proportion of hate crimes that are designated as anti-LGBTQ.

And, of course, the icing on the proverbial wedding cake is the election of a president who has delivered on the promises he made during what some call “the most anti-LGBTQ election in decades.” Drawing on Project 2025, a blueprint for Trump’s second term designed by the Heritage Foundation and other well-known anti-LGBTQ groups, Trump not only rolled back Biden-era protections for LGBTQ Americans but also nationalized many of the state-level policies attacking LGBTQ rights through executive orders and threats to funding.

Dobbs and Obergefell

One of the most significant events to transpire since Obergefell has nothing to do with marriage equality per se. Yet it has reinvigorated attacks on marriage equality: the Supreme Court’s 2022 reversal of Roe v. Wade. The rollback in Dobbs v. Jackson Women’s Health of the Court’s 50-year precedent upholding the right to privacy and bodily autonomy raises concerns about Obergefell’s legal foundation.

While the Dobbs majority does not reference Obergefell, a concurring opinion penned by Justice Clarence Thomas calls for the Court to revisit its rulings in Obergefell and an equally critical gay rights case, 2003’s Lawrence v. Texas (overturning laws criminalizing same-sex sexual intimacy). Justice Samuel Alito, who authored the Dobbs opinion for the majority, revived the call to revisit Obergefell in a 2024 shadow docket case involving employment discrimination against a lesbian employee.

Fearing a reversal of Obergefell, Congress passed, and President Joe Biden signed, the Respect for Marriage Act in 2022, which defines marriage as including same-sex nuptials for federal policies and benefits. While falling short of mandating marriage equality in the states, the act requires states to recognize same-sex marriages validated in other states. However, states still have considerable latitude in conferring marriage-based benefits and resources. A 2011 Fifth Circuit opinion argued that, under the Constitution’s Faith and Credit Clause, states must recognize same-sex adoptions legalized in other states, but they are not required to invest state resources to implement those decisions.

In this case, Louisiana did not have to issue a new birth certificate with the names of two dads who had adopted a Louisiana-born child. Although the adoption had been finalized in their home state of New York, Louisiana did not have to issue a birth certificate featuring both men’s names.

The couple appealed to the Supreme Court, which did not grant cert, leaving the matter unresolved. Obergefell and its ancillary cases rendered the decision moot. If Obergefell falls, the Fifth Circuit’s reading of Full Faith and Credit may give conservative states considerable latitude over what constitutes compliance with the Respect for Marriage Act.

Specifically, this reality implicates the 35 states whose marriage equality bans will go into effect if Obergefell is overturned. (Republican officials in nine states have initiated legislation that, if passed, could set up a challenge to Obergefell.) Trump has distanced himself from anti-marriage equality efforts, choosing to focus instead on other anti-LGBTQ policies, such as expelling trans-Americans from the armed forces. Trump tapped Scott Bessent to serve as Treasury Secretary, making Bessent the highest-ranking openly gay government official in history.

Still, the administration is no champion of gay and lesbian rights. In addition to refusing to recognize Pride month, just last week (at the beginning of Pride), Secretary of Defense Pete Hegseth demanded the removal of Harvey Milk’s name from a Naval warship. Milk was the first openly gay man elected to public office in the United States and a Naval veteran. He was assassinated while in public office, along with San Francisco Mayor George Moscone, in 1978.

Life after Obergefell is a story of extremes. On the one hand, same-sex couples experienced a seismic shift in both the availability of marriage-based benefits and widespread acceptance of their relationships. The decision inspired LGBTQ individuals to live and love openly and to demand equality. On the other hand, we have seen record-setting years of anti-LGBTQ policy reforms, increased rates of violence, and organized advocacy efforts targeting LGBTQ communities.

Shoving gay and lesbian couples—friends, co-workers, and neighbors in red and blue states alike—back in the closet may be beyond the power of the religious right. Still, LGBTQ people remain potent targets in conservative politics. Some Democratic centrists argue that the party should downplay these issues. Whether it does or does not, we can expect more (and more creative) attacks on fundamental LGBTQ rights in the coming years.

The post Ten Years After Obergefell: Is Same-Sex Marriage Safe? appeared first on Washington Monthly.