Dem
47
GOP
53
Donald Trump has never talked much about same-sex marriage. In fact, one of his top cabinet members, Treasury Secretary Scott Bessent, is a married gay man. Trump has bigger fish to fry than rehashing same-sex marriage. However, some of his evangelical supporters who never liked the Supreme Court decision Obergefell v. Hodges, which legalized same-sex marriages nationwide, are champing at the bit to overturn it. After all, the Court reversed Roe v. Wade after 49 years on the books, and Obergefell has been around only 10 years, so chucking it would be no big deal, right?
At their annual meeting, Southern Baptists called for state laws challenging Obergefell on the grounds that the composition of the Supreme Court is more favorable to their viewpoint now than it was in 2015. Three of the five justices in the majority in 2015, Stephen Breyer, Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the Court. Two of them, Elena Kagan, and Sonia Sotomayor, are still around. Of the four dissenters, Justices Samuel Alito, John Roberts and Clarence Thomas are still onboard. Antonin Scalia is not. If the chance came up to scuttle Obergefell, Alito, Roberts and Thomas are probably still of the same opinion they were in 2015, so all it would take is any two of the Trump appointees, Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh. There could well be two votes there.
In nine states, resolutions calling for Obergefell to be reversed have been introduced. Some states are also considering a new class of marriage, covenant marriage, which would make divorce very difficult (God would have to personally sign off on the divorce).
One case that could be the vehicle to overturn Obergefell has been brought by Kim Davis, a former Kentucky County clerk who defied court orders and refused to issue marriage licenses to same-sex couples in 2015. She is asking the Supreme Court to take her appeal and overturn Obergefell. The Court has not yet decided whether it will take the case. All it takes is four votes and Alito, Roberts, and Thomas are probably three of them. Just one more is needed. It could happen.
If the Court reversed Obergefell next June, it would cause a stir but probably not nearly as big as the Dobbs decision reversing Roe v. Wade because many fewer people are potentially affected and probably a majority of those are already voting for Democrats. Still, if the Democrats campaigned in part on the idea that the Supreme Court is running amok and has lost all interest in the Constitution and just rules based on their personal views, it could swing some independents. (V)