Organized push underway to overturn same-sex marriage ruling

The Supreme Court declined last year to hear a Kentucky county clerk's challenge to the 2015 same-sex marriage ruling, deflating one effort to reverse the landmark decision. But that case represented only a preliminary skirmish in a broader, organized campaign now gaining momentum.

Kimberly Jean Davis, a Rowan County clerk, refused to issue marriage licenses to same-sex couples after the Supreme Court's 2015 decision in Obergefell v. Hodges. When she defied a federal court order, six couples sued. A jury ordered Davis to pay $100,000 in damages to one couple in 2023, and a federal judge later added $260,000 in attorney fees.

When Davis appealed, the U.S. Court of Appeals for the 6th Circuit noted a fundamental problem: Davis had failed to raise her central argument—that Obergefell should be overturned—in the lower court proceedings. She had explicitly stated during those proceedings that she did not "want to relitigate the Supreme Court's decision in Obergefell." The appeals court also found Davis had no qualified immunity as a public employee and no valid First Amendment claim, since the First Amendment protects private conduct, not state action. The Supreme Court declined to hear her petition, with no justice dissenting.

That defeat has not deterred the broader anti-Obergefell effort. Public opinion has shifted in ways that may encourage such campaigns. Support for same-sex marriage fell from 71 percent in 2022-2023 to 65 percent today, according to Gallup. Republican support dropped more sharply, from 55 percent in 2021-2022 to 37 percent currently.

Multiple organizations have begun coordinated efforts to challenge the ruling. The Southern Baptist Convention, the nation's largest Protestant denomination, voted overwhelmingly last year to urge the Supreme Court to overturn same-sex marriage rights. The Liberty Counsel, a policy ministry including church associations, has called for the court to "finally overturn this egregious opinion from 2015."

Activist group MassResistance has focused on state legislatures, encouraging lawmakers to pass resolutions calling for the Supreme Court to reverse Obergefell. Lawmakers in Idaho, Michigan, Montana, Oklahoma, North Dakota, and South Dakota have introduced such resolutions.

Several anti-Obergefell organizations have adopted a new legal framework centered on children's rights. The Greater Than coalition, which includes 47 conservative organizations, argues that children deserve male and female parents and that children's interests should outweigh same-sex couples' rights. Katy Faust, president of Them Before Us, has promoted this approach at conservative conferences. The Heritage Foundation, which developed Project 2025, has launched a "Put Family First" initiative premised on the belief that every child should be "born to a married mother and father."

The Heritage Foundation and Them Before Us have financial backing. The founder of Hobby Lobby has funded Them Before Us, according to reporting.

The Trump administration may also influence such efforts. Solicitor General D. John Sauer filed a brief in 2015 opposing same-sex marriage on federalism grounds, arguing the court should defer to states on marriage law.

Still, several obstacles stand in the way of overturning Obergefell. In the 2017 case Pavan v. Smith, the Supreme Court ruled that Arkansas could not prohibit a same-sex spouse from being listed on a child's birth certificate. Justice Neil Gorsuch's dissent suggested that Obergefell might have limited applications rather than proposing its outright reversal.

Chief Justice John Roberts dissented in Obergefell but likely supported the Pavan majority. Justice Brett Kavanaugh has described same-sex marriage as "a very important right" and said gay Americans "cannot be treated as social outcasts." Justice Amy Coney Barrett stated in 2020 that she would "faithfully follow" Pavan as binding precedent and listed marriage among fundamental rights in her 2025 book.

Justice Samuel Alito, one of Obergefell's harshest critics, stated last October that he was "not suggesting that the decision in that case should be overruled," calling it "a precedent of the Court that is entitled to the respect afforded by the doctrine of stare decisis." Justice Clarence Thomas remains a reliable vote to overturn Obergefell, having written in the Dobbs decision overturning Roe v. Wade that the court should "reconsider all of this Court's substantive due process precedents, including Obergefell."

Another complication: Twenty-four states have enacted bans on same-sex marriage through statutes or constitutional amendments. Should Obergefell be overturned, the 2022 Respect for Marriage Act would still require all states to recognize same-sex marriages performed elsewhere. Conservative groups could mount a 10th Amendment challenge to that federal law, arguing states retain reserved powers over marriage. The fate of existing same-sex marriages in states with bans remains unclear.

For an Obergefell reversal to succeed, courts would need to consider a state law with a coherent legal theory challenging the precedent. Even if the current court granted review, reversing Obergefell would require overcoming multiple justices' prior statements defending the decision and principles of stare decisis.