Will the Supreme Court overturn gay marriage?
I put the probability of the Supreme Court overturning marriage equality before 2029 at 14%. The risk is real because the Court’s conservative majority is open to revisiting old precedents, but there is still a substantial gap between speculative interest and a successful overruling.
Analysis
The key fact is that Obergefell remains binding law, and the recent record shows the Court has so far declined to reopen it even when opportunities arose through related litigation. That matters because overturning a landmark precedent is not just about ideological sympathy; it requires the right case, a cert grant, a majority willing to take the reputational and institutional hit, and then five votes on the merits. The current Court has shown more willingness to narrow rights than to directly detonate a major settled precedent, especially one with enormous reliance interests affecting families, benefits, taxation, and interstate recognition of marriages.
At the same time, the possibility cannot be dismissed. The Court’s composition is conservative enough that there are at least some justices who have signaled discomfort with Obergefell, and the broader jurisprudential environment is friendlier to overruling than it was a decade ago. If a vehicle case reaches the Court with clean facts, a strong federalist or religious-liberty framing, and a justice pool still aligned as it is today, a move to revisit the case is plausible. The real question is not whether some justices would like to test the doctrine, but whether a majority would be prepared to go all the way to reversal rather than stop at a narrower ruling.
Against that backdrop, the current market looks a bit too confident on No. A 90% implied No price suggests the market is treating overturning as almost off the table, but the combination of a live conservative majority, ongoing litigation pressure, and the possibility of a politically different Court by 2029 leaves more tail risk than that price implies. I would not call Yes likely, but I do think the market is understating the chance of a surprise reversal or at least a decision that functionally guts Obergefell’s protections; on the exact question asked, 14% feels more defensible than 10%.
Arguments
For
- A conservative Supreme Court majority creates a credible pathway for revisiting Obergefell if the right case reaches the docket.
- Recent litigation and dissents show that at least some justices remain open to challenging the decision.
Against
- The Court recently declined to take up a related challenge, which suggests no immediate appetite for reversal.
- Overturning marriage equality would create massive reliance and legitimacy costs, making several justices likely to hesitate.
Key drivers
- The Court’s current conservative majority makes a future challenge to Obergefell procedurally and ideologically plausible.
- Overruling a major precedent requires a suitable case and five justices willing to pay the institutional costs, which is still a high bar.
Risk factors
- Several justices may prefer to avoid a direct confrontation with marriage equality because of reliance interests and political backlash.
- The Court can signal skepticism or narrow related rights without actually overturning Obergefell before 2029.
Scenarios
Best case
A clean test case reaches the Court, enough justices decide Obergefell was wrongly decided, and the Court expressly overrules it before 2029.
Most likely
The Court continues to leave Obergefell formally untouched while related disputes and dissents keep the issue alive, but no outright reversal occurs before 2029.
Worst case
The Court repeatedly refuses to hear challenges, or only issues narrower rulings, leaving Obergefell intact through the end date.
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