Is gay marriage in the US at risk?

BERLIN - Ten years after the Supreme Court issued a landmark ruling that legalised gay marriage in the United States, the White House is reversing a raft of LGBTQ+ rights and Republicans in at least six states are scrambling to ban same-sex weddings.

LGBTQ+ advocates say the right to marry a person of the same sex could be at risk should judges vote to overturn the Supreme Court's historic 2015 Obergefell v. Hodges ruling.

No date is set for any Court showdown but challenges to the 2015 ruling are beginning to surface across the country, with proponents emboldened by the return to power of Donald Trump.

Trump has signed multiple executive orders that impact the lives of LGBTQ+ Americans, many of whom fear the Court may go still further if it re-examines same-sex marriage.

Here's what you need to know.

What's happened since the U.S. legalised gay marriage?

On June 26, 2015, the U.S. became the 17th country in the world to legalise same-sex marriages nationwide, although several states had recognised such unions for years.

In the United States, more than 774,000 same-sex couples have wed, according to government data.

In 2022, the Respect for Marriage Act was passed with bipartisan support, requiring the U.S. government, all states and territories to recognise same-sex marriages.

Most adults in the United States (68%) support same-sex marriage, according to a Gallup survey released last month, but support among Republicans has plunged 14% since 2022 to 41% this year, while 88% of Democrats are in favour.

The 47-point gap is the largest Gallup has recorded since it began asking Americans about gay marriage in 1996.

Where is same-sex marriage being challenged and how? 

Republican lawmakers in at least six states - Idaho, Michigan, Montana, Oklahoma, North and South Dakota – have this year introduced resolutions urging the Supreme Court to overturn its 2015 ruling, although none has cleared both legislative chambers in any one state.

In four U.S. states - Missouri, Oklahoma, Tennessee and Texas – bills have been introduced that would create ‘covenant marriages’ that are only open to male-female unions.

While such unions would not automatically deliver extra rights, the efforts to pass these measures – along with the symbolic resolutions against the landmark 2015 ruling – show how well-established LGBTQ+ protections are coming under fire.

"What they're doing is sending a signal to Americans that they're interested in weakening same-sex marriage, if not outright getting rid of it," said Paul M. Collins, Jr., a professor of legal studies at the University of Massachusetts Amherst.

Could the Supreme Court overturn the 2015 ruling?

While no case is yet on the table, advocates believe the issue could well return to the nation’s top court in coming years, possibly pegged to lawsuits around religious freedom.

"One state could pass a law outlawing same-sex marriage, or alternatively, someone who provides marriage licences could refuse to give a same-sex couple a marriage licence, and that would kind of get the ball rolling," Collins said.

Since the 2015 decision, the Supreme Court has also shifted right and conservative judges now hold a 6-3 majority. 

Not all justices have addressed the issue publicly, though the conservative majority ruled in 2023 that the constitutional right to free speech allows certain businesses to refuse to provide services for gay and lesbian weddings. 

Some campaigners fear the same judges who eliminated the right to terminate a pregnancy three years ago - when the court overturned the 1973 ruling Roe v. Wade that legalised abortion nationwide - could curtail gay marriage.

"I can see an outcome in the Supreme Court that Obergefell gets overturned and the decision as to whether or not to grant marriage licences to same-sex couples goes back to the states,” Collins said.

What would happen if 2015's ruling were overturned?

Should the ruling be overturned, gay and lesbian couples would likely no longer be able to marry in the 30 states with laws banning these unions, such as Montana, Texas and Florida.

However, couples in those states would not in principle lose their marriage licences - one reason why many same-sex couples have rushed to wed since Trump was elected.

Same-sex marriage would anyway still be legal in the 20 states that have codified it, and other states would still have to recognise their unions - so long as the 2022 Respect for Marriage Act remains in place.

Democrats are meanwhile pushing to repeal old state statutes and constitutional amendments that ban same-sex weddings. 

Last year, California, Colorado and Hawaii passed ballots to codify marriage equality.

(Reporting by Enrique Anarte; Editing by Lyndsay Griffiths and Anastasia Moloney.)