Supreme Court Justices Question Status of Marriage Equality: What It Means for Our Families

On the U.S. Supreme Court’s first day reconvening after equality icon Justice Ruth Bader Ginsburg’s death, marriage equality was front and center.

Deciding not to hear an appeal from Kim Davis—the infamous Kentucky county clerk who was sued for refusing to issue marriage licenses to same-sex couples—should have been good news. But, a statement from Justice Thomas, joined by Justice Alito, questioned the nationwide precedent established five years ago in Obergefell v. Hodges.

The Supreme Court has played an important role in the LGBTQ+ community’s path toward equality. However, with this development and the death of Justice Ginsburg, many are growing concerned. “The potential impact of this Court has perhaps never been greater than it is right now,” says Jim Obergefell, lead plaintiff in that pivotal marriage equality case, and our new Director of Individual Giving.

What Justices Thomas and Alito’s Dissent Means for Marriage Equality

To be clear: these dissents are nothing new.

These Justices dissented in Obergefell, making their bigotry and anti-LGBTQ+ bias clear in 2015. After that, they doubled-down on their obvious disregard for equality and precedent in their dissent in Pavan v. Smith, a 2017 case where the Supreme Court summarily reversed the Arkansas Supreme Court’s decision denying married same-sex couples the right to have both spouses’ names on their children’s birth certificates.

Of course, in these cases—like in Davis—their dissents have no legal impact. Obergefell v. Hodges remains the law of the land. But, the dissents do reveal that even though the rest of society has moved on—a majority of Americans (61%) support marriage of same-sex couples— these Justices are living in the past.

What can we find peace of mind in? Chief Justice Roberts, the only other Obergefell dissenter who is currently on the Court, did not join in their call to revisit Obergefell. Nor did Justices Kavanaugh or Gorsuch, who were not on the Court when Obergefell was decided.

What’s at Stake for LGBTQ+ Families in the Supreme Court Now

There is no question that with the retirement of Justice Kennedy and the loss of Justice Ginsburg, we are at a heightened risk of attacks against our marriages. This includes attacks on the benefits connected to marriage, including family formation.

In fact, next month, the U.S. Supreme Court will hear arguments in Fulton v. City of Philadelphia, a case that speaks to that very issue. Can a taxpayer-funded child welfare provider assert a right to discriminate against LGBTQ+ people seeking to foster and adopt children?

The nomination of Amy Coney Barrett—a clear opponent of LGBTQ+ equality—to replace Justice Ginsburg reminds us what’s at stake in the upcoming election. The President nominates federal judges, and the Senate confirms them. Under the Trump Administration, over 200 judgeships, including two already on the US Supreme Court, have been nominated. Stacking the courts with jurists who have records of anti-equality judgments that disregard established precedent will have ramifications for years to come.

What we can do to combat anti-LGBTQ+ attacks


We must vote for equality candidates who will stop this radical politicization of the courts. Make a plan: Are you voting early? By mail? In-person?

Vote whatever way it works best for you, as long as you VOTE. And then, contact friends and family members to make sure they vote too.

Tell Your Senator: No Confirmation until after Inauguration

The next Supreme Court Justice will make critical decisions that impact our families, including whether we have full marriage equality and can form and protect our families. With the election already underway and 5 million ballots already submitted, we must not push through a nominee until the election results are certified and the winner is sworn in on Inauguration. Justice Ruth Bader Ginsburg deserves a successor who is chosen by the next president elected by the people.

Make your voice heard by clicking here.

Support equality candidates

Find the equality candidates at all government levels on your ballot or in other states and support them in other ways too. Donating, phone banking, or sending postcards are all additional ways you can support equality candidates and their campaigns.

Support us

There are organizations fighting on the frontlines of these issues—including Family Equality. Every day, our expert policy team works to protect our rights and develop policies that support LGBTQ+ families. But we can’t continue this critical work without your support.

“You can be assured that Family Equality and I will do everything in our power to speak out against the attacks on our families,” says Obergefell.

Together, we can stand against the kind of hatred and bigotry that Justices Thomas and Alito expressed this week. And with your help, we can make sure that their fringe viewpoints do not impact our right to love and live freely.