by Patrick Gaffney

To be sure, the Supreme Court’s 5–4 decision in Obergefell v. Hodges remained secure so long as its author, Justice Anthony Kennedy, remained on the court along with the four justices who joined his opinion.1  However, Justice Kennedy has announced his retirement, and President Trump has nominated Judge Brett Kavanaugh to replace him.

With this development, what are the chances that Obergefell could be overturned?  With Kennedy’s retirement, it has been suggested that Chief Justice Roberts will become the swing vote on marriage equality.  It is difficult to imagine the chief justice supporting Obergefell in light of his previous dissent.  An optimist might speculate that the chief justice, who cares deeply about the court’s institutional legitimacy, would uphold the decision as a matter of stare decisis. Roberts might reason that while he initially opposed Obergefell, he now has an obligation to follow it as a precedent of this court.  Overturning the decision, after all, would throw same-sex couples into legal limbo.  The ensuing chaos would not be a good look for the Roberts court.

LGBT groups have made great advances in recent years thanks largely to a string of Supreme Court decisions written by Kennedy, including cases that legalized gay sex and established a right to same-sex marriage.

LGBT groups have successfully challenged equal protection violations in several states, including Wisconsin and Florida, since 2015. But activists worry that a case from the 2018 session, Masterpiece Cakeshop v. Colorado Civil Rights Commission, could be a sign of trouble ahead.

That case, which was narrowly decided, upheld the right of a Christian baker to refuse to create a wedding cake for a gay couple, citing his religious objection to the marriage.  But Justice Kennedy, who wrote the majority opinion in that case, also defended gay rights, writing that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

The Alliance Defending Freedom, the conservative legal group that argued the Masterpiece case, is currently litigating cases where free speech, religious freedom and public accommodation laws collide.  Earlier this year, it filed a brief with the Kentucky Supreme Court on behalf of a printer who refused to make shirts for a Pride festival.  The group is working on similar cases in Arizona and Minnesota.

Justice Kennedy’s legacy remains unsettled and uncertain.  His gay-rights decisions will now face a hostile majority on the court.2i

1 Stern, Mark Joseph.  “Marriage Equality May Soon Be in Peril.  How the Supreme Court Could Overturn Obergefell v. Hodges.”  July 5, 2017.  Retrieved from:

2 Greenfield, Kent and Winkler, Adam.  “Without Kennedy, the Future of Gay Rights is Fragile.”  The New York Times. June 28, 2018.

i Additional content taken from: Stack, Liam and Dias, Elizabeth. “Supreme Court opening could affect gay marriage as much as abortion, activists say. The prospect of a more conservative justice has LGBT rights groups worried about legal challenges.” 4 July 2018. Retrieved from:

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