Amy Coney Barrett Says Same-Sex Marriage Has ‘Concrete Reliance Interests’

Justice Amy Coney Barrett told the New York Times’s Ross Douthat the Supreme Court’s landmark same-sex marriage decision generated “concrete reliance interests,” a factor courts traditionally consider when determining whether to overturn precedent.

In their conversation, Barrett defines reliance interest as “things that would be upset or undone if a decision is undone.”

Why It Matters

Some justices like Clarence Thomas have signaled an openness to revisiting the case Obergefell v. Hodges, which guaranteed the right for same-sex couples to marry nationwide. The conservative shift on the Supreme Court has at times sparked concern from the LGBTQ+ community as the court has overthrown some landmark precedents, including Roe v. Wade.

Barrett, who was appointed to the bench by President Donald Trump, has at times been willing to break with conservative justices.  The Court currently has a 6-3 conservative majority, and a recent Gallup poll found that over 40 percent of Americans, an all-time high, say the Court is “too conservative.”

A May Gallup poll found that public support for same-sex marriage has slightly dropped, with 68 percent of Americans supporting it. Forty-one percent of Republicans support same-sex marriage and 88 percent of Democrats, according to the poll.

What To Know

Douthat asked Barrett if there can “be social reliance interests, in the sense of people making life choices on the basis of a right being protected?” He turned to the example of Obergefell v. Hodges, stating, “The Supreme Court recognized a right to same-sex marriage. Originalist justices at the time believed that ruling was wrongly decided. One of the arguments for why Obergefell v. Hodges is unlikely to ever be overturned is the idea that people have made decisions about who to marry and therefore where to live and children…Everything else, on the basis of that ruling.”

Barrett responded that those are “absolutely reliance interests,” adding that she would not classify them as “social reliance interests” because that makes it seem like “things in the air,” whereas those examples are “very concrete reliance interest.”

Earlier, responding to the question of overturning precedent, Barrett noted that it is not only about whether the original decision was right or wrong, adding that you also have to consider “for many of the reasons—stability, reliance interests, et cetera.”

She clarified that the "concrete reliance interests" related to Obergefell would be “classic reliance interest in the terms of the law, in the terms of legal doctrine,” noting that they dovetail with financial and medical interests, among others. Earlier in the conversation, she said that “classic” examples are property and contract.

In their conversation, Douthat said, “The premise that the court has some kind of obligation to respect precedent and work from precedent and not just in every decision go back to treat every case as a de novo case,” which Barrett agreed with. However, he then said, “The Court overturns precedent all the time,” which Barrett disagreed with, stating that her law clerks have found that “the Roberts court has overturned precedent roughly one time per year,” noting that previous courts had more than double that.
Former Secretary of State Hillary Clinton said on the podcast Raging Moderates: “The Supreme Court will hear a case about gay marriage; my prediction is they will do to gay marriage what they did to abortion—they will send it back to the states.”

Supreme Court Justice Clarence Thomas wrote in the 2022 case Dobbs v. Jackson Women's Health Organization: "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell."

Josh Daws, host of The Great Awokening Podcast, wrote in an October 9 X post: “Obergefell should be overturned regardless of whether or not that has popular support.”

What Happens Next

Earlier this year, Kim Davis, the Kentucky clerk who garnered national attention by declining to issue marriage licenses to same-sex couples after Obergefell, filed a petition for a writ of certiorari with the Supreme Court.