This Probably Won’t Be the SCOTUS Case That Kills Marriage Equality

As for the three remaining conservatives, it’s more complicated and less clear. None of them have signaled an interest in overturning it since joining the court. Justice Neil Gorsuch joined with Thomas and Alito in a post-Obergefell summary judgment case on birth certificates, but his main issue wasn’t with Obergefell itself, but with how the majority approached the case on a procedural level. Gorsuch also wrote the court’s landmark decision in Bostock v. Clayton County, where the court held that Title VII’s workplace-discrimination protections covered sexual orientation and gender identity. That doesn’t mean that he wouldn’t vote to overturn Obergefell, of course, but that vote makes it much harder to suggest that he definitely would.

There are even fewer signs that Kavanaugh or Barrett are interested in doing so, which is telling in and of itself. Overturning Roe was also the product of a half-century of activism and advocacy by the conservative legal movement. The justices who voted to overturn Roe sent ample signals about their intent to do so in advance. It was part of the reason that they got the job, along with their disdain for federal regulatory agencies and their commitment to Robertsian colorblindness on race.

There is no comparable legal or political campaign to pressure the justices at the moment to overturn Obergefell. 88 percent of Americans said that they support marriage equality in a Gallup poll earlier this year. Leonard Leo, the eminence grise of the conservative legal movement, recently suggested that the matter was closed for now. “Is gay marriage settled law?” Bari Weiss asked him in an interview earlier this year. “Yes, probably,” Leo replied.