Is marriage equality likely to be overturned under Trump? Here’s the legal case | Opinion

On Nov. 5, Donald Trump was reelected president, sparking renewed concerns about the future of marriage equality. Trump's prior statements, such as his support for " traditional marriage " and belief that marriage should be between a man and a woman , have fueled fears. While he once labeled marriage equality cases as "settled," he has also stated he would consider appointing justices willing to overturn Obergefell v. Hodges.

While presidents wield significant power through executive actions, it's crucial to remember the substantial legal protections that marriage equality has gained over the past decade. Chief among these is the landmark 2015 Obergefell decision, where Justice Anthony Kennedy's majority opinion affirmed that marriage equality is a fundamental right protected by the 14th Amendment:

"The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty."

Because Obergefell established marriage equality as a constitutional right, it cannot be overturned by federal law or executive order — but only by the Supreme Court. Courts generally hesitate to reverse their previous decisions because of the principle of stare decisis, which upholds the stability of legal precedents.

However, Supreme Court rulings are not immune to reversal. Notably, only two of the justices who supported Obergefell remain on the bench today: Justices Sonya Sotomayor and Elena Kagan. In her dissenting opinion in Department of State v. Muñoz this June, Sotomayor questioned the Supreme Court's commitment to upholding the Obergefell decision.

Furthermore, the 2022 Dobbs v. Jackson Women's Health decision, which overturned Roe v. Wade, serves in our collective memory as a recent example of the Supreme Court overruling long-held precedent. Though the court has yet to hear any direct challenges to marriage equality, the fallout from Dobbs provides insights into how marriage rights could be safeguarded if Obergefell were ever overturned.

A key federal safeguard is the Respect for Marriage Act, which President Joe Biden signed into law on Dec. 13, 2022. This legislation repealed the Defense of Marriage Act, including its definition of marriage as a "union between one man and one woman," ensuring federal recognition of same-sex marriages. Additionally, it compels states to recognize same-sex and interracial marriages legally performed in other U.S. states or territories. Notably, the act received bipartisan support, with 39 Republicans in the House and 12 in the Senate voting in favor of its passage. However, the legislation's protections hinge on at least one state or territory maintaining marriage equality, even if Obergefell were to be overturned, and for individuals to be able to obtain a marriage in that state or territory without significant barriers.

State-level protections are another important defense. This Election Day, voters in California, Colorado and Hawaii joined Nevada in enshrining marriage equality in their state constitutions. Nevertheless, 33 states still have statutory or constitutional bans on marriage equality, which would immediately become enforceable if Obergefell were struck down. These bans could impact nearly 61% of LGBTQ+ adults living in those states . These numbers include the District of Columbia, but do not include individuals in U.S. territories.

While Obergefell is not likely to be overturned in the near future, it remains vulnerable. That said, there are far greater federal and state protections for marriage equality than discrimination against the LGBTQ+ community, particularly for transgender and genderqueer individuals. In 2024 alone, a record 532 anti-LGBTQ+ bills were introduced across the U.S.

Individuals who would like to wait to be married might want to put down the premature wedding invites and start contacting their state legislators instead. Advocating for protective state legislation, donating to organizations protecting LGBTQ+ rights and staying informed on local and national policies can make a meaningful impact. Grassroots efforts, such as contacting state representatives and encouraging voter turnout in elections, can play a crucial role in advocacy.

The future of equality depends not just on the courts, but on the collective efforts of American citizens.

Nico B. Stillwell is a civil rights and employment discrimination lawyer at Edelman, Liesen & Myers in Kansas City, Missouri.