Washington –

Katie Faust addressed an audience at a recent national conservative conference, stating, “Gay marriage did that.” She shifted focus from the usual tales surrounding the Obergefell v. Hodges case, which are often critiqued for undermining federalism and religious freedoms, instead highlighting what she sees as the adverse effects of gay marriage on children’s rights.

Faust’s perspective reflects a growing sentiment among some conservatives who are reconsidering the implications of Obergefell. The Natcon conference featured a panel titled “Overturn Obergefell,” which comes shortly after a petition to the Supreme Court seeking to challenge the ruling, signifying an increasing hope among certain groups that a cultural reversal may be on the horizon.

“The last decade has made one thing clear,” Faust remarked. “We can acknowledge gay marriages or we can affirm children’s rights to have moms and dads. We can’t have it both ways.”

The Supreme Court is poised to decide soon whether it will entertain a formal request to overturn Obergefell, marking the first time since 2015 that such a request has been presented. Faust’s petition, filed in July, argues that the “substantial due process legal fiction” established by Obergefell must be reconsidered.

The pressing question is whether there are enough votes on the bench to support this reversal. Many legal analysts remain skeptical.

Ilya Shapiro, director of constitutional research at the Manhattan Institute, expressed doubt, stating, “The petition is unlikely to be recognized. There aren’t five votes on the court willing to overturn Obergefell.” He doubted the case could be successfully carried forward, even if it did make it to the bench.

A very long road

The Court of Appeals for the Sixth Circuit recently upheld a ruling in which Kim Davis was ordered to pay $100,000 in emotional damages and legal costs to a same-sex couple after she denied them a marriage license. Davis had previously approached the Supreme Court in 2020 regarding the issue of qualified immunity, but her case was not taken up. However, Justice Clarence Thomas has noted that Davis’ situation serves as a stark reminder of the implications of the Obergefell decision.

Thomas remarked, “The courts have prioritized a new constitutional right over the First Amendment’s protection of religious freedoms in an undemocratic manner.” He also indicated a desire to reconsider Obergefell in light of a later ruling in Dobbs v. Jackson Women’s Health Organization, while making it clear that this wouldn’t impact other established precedents unrelated to abortion.

Each year, the Supreme Court receives around 7,000 to 8,000 petitions but agrees to hear fewer than 100. It requires a consensus of four justices to take on a case and five to win.

Matthew Staber, chairman of Liberty Advisors and Davis’ attorney, mentioned that three justices have already voiced strong opinions against Obergefell.

Chief Justice John Roberts critiqued the Obergefell ruling as “an act of will, not a legal judgment.” Staber noted that this was the only dissent he had expressed from the bench.

“My only question is whether…” John Eastman, founder of a Constitutional Law Center, posed during the NATCON panel. He reflected on Roberts’ stance, indicating a struggling balance between protecting the court’s integrity and his approach to managing this case.

The Supreme Court is also responding to Davis’ petition, with Eastman implying strong interest in the potential to reverse Obergefell.

“They seem much more progressive than that, and if they could lean on their religious freedom claims alone, I think that’s probably true,” Eastman suggested.

Josh Blackman, a professor at the University of South Texas, reiterated that the path toward overturning Obergefell is lengthy.

“We’d need local governments to deny marriage licenses or reject the marriage rights of same-sex couples. The lower courts would have to follow suit, and even then, it requires four justices willing to take on the case,” he explained, adding, “I think that’s highly unlikely.”

After the overturning of Roe v. Wade in 2022, some observers noted parallels in the attempts to challenge Obergefell, although Walter Olson from the Cato Institute pointed out that efforts against Roe spanned decades, while Obergefell lacks a comparable movement.

Rabbi Ilan Feldman asserted during the Natcon panel, “Marriage isn’t something we redefine. It’s God’s plan for the world.”

Changing culture?

Davis’ petition has ignited vigorous media discussions. Predictions have emerged about the threat to “gay rights,” including comments from Hillary Clinton regarding the Supreme Court’s trajectory.

Public support for gay marriage remains at about 68%, higher than it was in 2015, but also indicates a 14% decline among Republicans since 2022.

Meanwhile, the LGBTQ movement continues to grow, with statistics showing that 23% of Generation Z identify as non-heterosexual.

The Supreme Court faces numerous other gender ideological issues, having recently backed state efforts to restrict transgender procedures for minors, while considering cases around banning men from women’s sports in the 2025-2026 cycle.

In January, the Idaho House passed a resolution urging the Supreme Court to reconsider Obergefell, following a similar resolution in North Dakota that was rejected.

Additionally, in June, the Southern Baptist Convention voted for the first time to call for a reversal of the ruling.

Panelists at the NATCON conference observed a noticeable cultural shift regarding these issues, noting that conversations that would have been unthinkable a few years ago are now part of mainstream discourse.

Faust argued that the implications of gay marriage extend into family structures and legal protections, claiming a detrimental impact on children involved in surrogacy arrangements.

“A true conservatism must commit to removing this threat from our laws,” stated Jeff Schaefer, director of the Hale Institute, emphasizing the need for action.

Overall, while experts remain uncertain about the Supreme Court’s forthcoming decisions, there is a shared hope among some that change may arrive and the cultural landscape continues to evolve.

“Culture is changing,” Eastman declared. “I even received a meme about Nancy Pelosi trading stocks in baby goods due to Taylor Swift’s engagement!”