Is there any reason to doubt that Obergefell's days are numbered?

[SnowLabrador]

Right now, I don't see any. The Supreme Court overturned a nearly 50-year precedent on a whim, for political reasons. Obergefell hasn't even been law for 8 years. The Supreme Court still has a far-right supermajority that appears determined to claw at the rights Americans have fought so hard for. And you don't have to take my word for it, or even Clarence Thomas'. Since SCOTUS is just one arm of the GOP now, you even see politicians like Ted Cruz openly calling for them to "reconsider" Obergefell.

Despite all this, many people don't seem to think Obergefell is doomed. If you're one of these people, please explain why not.

[Stand With Israel. Crush Hamas]

There aren't five votes to overturn it. Gorsuch is strongly pro-gay rights, more so than Roberts, and Roberts hates overturning precedents. A vote on Obergfell now is 5-4 in favor of upholding it.

[Torie]

The Court would not even grant cert for such a potential  overruling case. There would be but one vote for that. Thomas. Why? Read the Alito decision overruling Roe. The thing is, is that there is a huge reliance factor is Obergefell, with millions of same sex marriages ensuing, in reliance thereon, and to reverse all of that, where there is now a very substantial national consensus that SSM is right and good and beneficial, is precisely where precedent is the strongest, even if wrongly decided in the first instance. That is the extant legal canon when it comes to the power and resiliency of stare decisis.

You don't believe me? Just read Alito's decision reversing Roe. He took great pains to distinguish Roe  from Obergefell for the reasons stated above, and said so explicitly. SSM is "never" going away. It is the future - not the past.

So the answer beyond per adventure is "no." Next!

Actually "yes," given the awkward way the question was phrased, cf Dead0man below.

[NewYorkExpress]

The court would not even grant cert for such a potential  overruling case. There would be but one vote for that. Thomas. Why? Read the Alito decision overruling Roe. The thing is, is that there is a huge reliance factor is Obergefell, with millions of same sex marriages ensuing, in reliance thereon, and to reverse all of that, where there is now a very substantial national consensus that SSM is right and good and beneficial, is precisely where precedent is the strongest, even if wrongly decided in the first instance. That is the extant legal canon when it comes to the power and resiliency of stare decisis.

You don't believe me? Just read Alito's decision reversing Roe. He took great pains to distinguish Roe  from Obergefell for the reasons stated above, and said so explicitly. SSM is "never" going away. It is the future - not the past.

So the answer beyond per adventure is "no." Next!

Alito literally only said that to shield the court from criticism for overturning Roe in the first place. I count four definite votes for overturning Obergefell (Thomas, Alito, Coney Barrett, Kavanaugh), one tossup (Roberts), and one likely vote to uphold among the conservatives (Gorsuch).

Obergefell's status probably depends on what kind of mood John Roberts is in, quite honestly.

[H.E. VOLODYMYR ZELENKSYY]

The court would not even grant cert for such a potential  overruling case. There would be but one vote for that. Thomas. Why? Read the Alito decision overruling Roe. The thing is, is that there is a huge reliance factor is Obergefell, with millions of same sex marriages ensuing, in reliance thereon, and to reverse all of that, where there is now a very substantial national consensus that SSM is right and good and beneficial, is precisely where precedent is the strongest, even if wrongly decided in the first instance. That is the extant legal canon when it comes to the power and resiliency of stare decisis.

You don't believe me? Just read Alito's decision reversing Roe. He took great pains to distinguish Roe  from Obergefell for the reasons stated above, and said so explicitly. SSM is "never" going away. It is the future - not the past.

So the answer beyond per adventure is "no." Next!

Alito literally only said that to shield the court from criticism for overturning Roe in the first place. I count four definite votes for overturning Obergefell (Thomas, Alito, Coney Barrett, Kavanaugh), one tossup (Roberts), and one likely vote to uphold among the conservatives (Gorsuch).

Obergefell's status probably depends on what kind of mood John Roberts is in, quite honestly.

Roberts didn’t vote to overturn Roe. Why do you think he’d vote to overturn a much less controversial precedent?

[NewYorkExpress]

The court would not even grant cert for such a potential  overruling case. There would be but one vote for that. Thomas. Why? Read the Alito decision overruling Roe. The thing is, is that there is a huge reliance factor is Obergefell, with millions of same sex marriages ensuing, in reliance thereon, and to reverse all of that, where there is now a very substantial national consensus that SSM is right and good and beneficial, is precisely where precedent is the strongest, even if wrongly decided in the first instance. That is the extant legal canon when it comes to the power and resiliency of stare decisis.

You don't believe me? Just read Alito's decision reversing Roe. He took great pains to distinguish Roe  from Obergefell for the reasons stated above, and said so explicitly. SSM is "never" going away. It is the future - not the past.

So the answer beyond per adventure is "no." Next!

Alito literally only said that to shield the court from criticism for overturning Roe in the first place. I count four definite votes for overturning Obergefell (Thomas, Alito, Coney Barrett, Kavanaugh), one tossup (Roberts), and one likely vote to uphold among the conservatives (Gorsuch).

Obergefell's status probably depends on what kind of mood John Roberts is in, quite honestly.

Roberts didn’t vote to overturn Roe. Why do you think he’d vote to overturn a much less controversial precedent?

I think he would have voted to overturn had any of the other conservatives indicated that they were voting to uphold Roe. Make no mistake, overturning Roe was something Roberts supported, but by voting to uphold it, he gets to paint himself as a mostly non-partisan justice, when he really isn't, so it's a political calculation for him.

[Vice President Christian Man]

Didn't Congress codify gay marriage into law or at least the senate did

[Torie]

Didn't Congress codify gay marriage into law or at least the senate did

Yes that law did pass in the form of requiring states to give full faith and credit to SSM created in other states.

Here is some discussion on the SCOTUS action on the matter. SSM is not going to go away, and neither is Obergefell.

https://reason.com/2022/05/03/will-a-conservative-supreme-court-turn-on-gay-rights-after-dismantling-roe-be-a-skeptic/

[Unbeatable Titan Susan Collins]

The court would not even grant cert for such a potential  overruling case. There would be but one vote for that. Thomas. Why? Read the Alito decision overruling Roe. The thing is, is that there is a huge reliance factor is Obergefell, with millions of same sex marriages ensuing, in reliance thereon, and to reverse all of that, where there is now a very substantial national consensus that SSM is right and good and beneficial, is precisely where precedent is the strongest, even if wrongly decided in the first instance. That is the extant legal canon when it comes to the power and resiliency of stare decisis.

You don't believe me? Just read Alito's decision reversing Roe. He took great pains to distinguish Roe  from Obergefell for the reasons stated above, and said so explicitly. SSM is "never" going away. It is the future - not the past.

So the answer beyond per adventure is "no." Next!

Alito literally only said that to shield the court from criticism for overturning Roe in the first place. I count four definite votes for overturning Obergefell (Thomas, Alito, Coney Barrett, Kavanaugh), one tossup (Roberts), and one likely vote to uphold among the conservatives (Gorsuch).

Obergefell's status probably depends on what kind of mood John Roberts is in, quite honestly.

Roberts didn’t vote to overturn Roe. Why do you think he’d vote to overturn a much less controversial precedent?

I think he would have voted to overturn had any of the other conservatives indicated that they were voting to uphold Roe. Make no mistake, overturning Roe was something Roberts supported, but by voting to uphold it, he gets to paint himself as a mostly non-partisan justice, when he really isn't, so it's a political calculation for him.

https://www.oyez.org/cases/2019/18-1323 When Roberts was the deciding vote on an abortion case just two years before Dobbs he sided with precedent of the Court to overturn a state's abortion restriction.

There had been depending on the year since Roberts was on the Court anywhere from three to four votes to overturn Roe but Roberts never showed any willingness to join them. 

[Dan the Roman]

Unsure why people seem to put Kavanuagh in the overturn pile?

Anyway, Windsor/Obergefell are separate cases, and while there is a strong conservative objection to Obergefell as Kennedy produced it, there is little conservative consensus on overturning SSM. Alito seems to be the only ideologically hostile judge to gay rights, note that Thomas took pains to distinguish his dissent in Lawrence from Scalia and Rehnquist by stating he found the law "unusually silly" and would "vote to overturn it." Thomas may be more passionate about cleaning up substantive due process, but he seems to lack the policy urgency he felt about abortion and affirmative action, or other Justices in the past did feel on the issue.

Alito would like to tear up substantive due process and probably would like to overturn and reverse gay acceptance. But even he, as noted in Dobbs has reliance concerns.

Thomas has less reliance concerns, but has indicated less interest in the issue than he has almost any other. He quite likely welcomed congress codifying it, as it reduces the tradeoffs.

ACB is opaque but seems to care a lot about reliance.

Kavanaugh was a Kennedy protégé. His concurrence in Dobbs is fairly representative of his thinking. He probably would not do something that would actually end SSM.

Roberts, is well, Roberts and fighting defensively for the court.

Gorsuch I think people put too much focus on his support for gay rights and not enough on his textualism. Obergefell is a bad decision in a lot of ways.

Now all that said, I think there are quite a few votes to "clean up" the decision. Most of what followed, including Masterpiece Cake Shop, but also going back to whether county clerks have to issue marriage certificates is dubious under almost any conservative legal theory.

I suspect you will get full faith and credit upheld, but you may get a ruling which raises the point of how exactly anyone is harmed if a specific government official/city/or state does not issue or perform marriages for same-sex couples provided those couples can provide someone who will, and they receive the benefits. So in that sense I feel Windsor is likely to be safe, but the idea that somehow it is the job of every government employee of every level to advocate and justify same-sex marriage as being correct and equal will be rejected provided they follow the law in terms of providing equal benefits.

[I spent the winter writing songs about getting better]

Unsure why people seem to put Kavanuagh in the overturn pile?

Anyway, Windsor/Obergefell are separate cases, and while there is a strong conservative objection to Obergefell as Kennedy produced it, there is little conservative consensus on overturning SSM. Alito seems to be the only ideologically hostile judge to gay rights, note that Thomas took pains to distinguish his dissent in Lawrence from Scalia and Rehnquist by stating he found the law "unusually silly" and would "vote to overturn it." Thomas may be more passionate about cleaning up substantive due process, but he seems to lack the policy urgency he felt about abortion and affirmative action, or other Justices in the past did feel on the issue.

Alito would like to tear up substantive due process and probably would like to overturn and reverse gay acceptance. But even he, as noted in Dobbs has reliance concerns.

Thomas has less reliance concerns, but has indicated less interest in the issue than he has almost any other. He quite likely welcomed congress codifying it, as it reduces the tradeoffs.

ACB is opaque but seems to care a lot about reliance.

Kavanaugh was a Kennedy protégé. His concurrence in Dobbs is fairly representative of his thinking. He probably would not do something that would actually end SSM.

Roberts, is well, Roberts and fighting defensively for the court.

Gorsuch I think people put too much focus on his support for gay rights and not enough on his textualism. Obergefell is a bad decision in a lot of ways.

Now all that said, I think there are quite a few votes to "clean up" the decision. Most of what followed, including Masterpiece Cake Shop, but also going back to whether county clerks have to issue marriage certificates is dubious under almost any conservative legal theory.

I suspect you will get full faith and credit upheld, but you may get a ruling which raises the point of how exactly anyone is harmed if a specific government official/city/or state does not issue or perform marriages for same-sex couples provided those couples can provide someone who will, and they receive the benefits. So in that sense I feel Windsor is likely to be safe, but the idea that somehow it is the job of every government employee of every level to advocate and justify same-sex marriage as being correct and equal will be rejected provided they follow the law in terms of providing equal benefits.

How likely is such a case to be created though? No one has attempted this since Kim Davis.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

If a genie gave a First Things or Crisis contributor three wishes and one of them was to put a case clearly challenging Obergefell on the Supreme Court docket for oral arguments to be heard this coming Monday, then I think it would be possible that five months from now we'd be looking at a permanent, codified post-Windsor but pre-Obergefell status quo across the land. But there's a whole gauntlet of steps that any such case would have to run beforehand, from a controversy arising in the first place to the Supreme Court granting cert and agreeing to rehear "Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?" rather than some narrower question. I have a hard time imagining a test case that would clear that gauntlet.

[dead0man]

SSM ain't going anywhere, also, that's a horribly worded question we are supposed to be answering.

[politicallefty]

I hope people here aren't putting their faith in Justice Gorsuch because of his opinion in Bostock. That was a strict textualist decision based on the words of the Civil Rights Act of 1964. I'm unaware of anything in his jurisprudence that leads me to believe he's another Justice Kennedy. He takes a quite originalist view of the Constitution, a viewpoint that discounts the possibility of same-sex marriage rights under the Fourteenth Amendment.

If a case somehow reached SCOTUS, I think Roberts would uphold on stare decisis grounds. I'd say best of luck between Kavanaugh and Barrett.