The United States Supreme Court, in its 2015
Obergefell v. Hodges decision, declared a constitutional right to same-sex marriage (SSM). With Republicans now controlling the Congress and presidency, and with value-traditionalists and ‘strict’ constitutionalists influencing the party’s legislative agenda and judicial nominees,
Obergefell’s future and the contours of SSM rights are uncertain. Proponents assume the decision will delegitimate opponents, just as
Loving v. Virginia (
1967) accelerated the delegitimation of racial segregationists. SSM opponents counter with the Court’s 1973
Roe v. Wade ruling and argue that, like
Roe, Obergefell undermines the democratic process, which is better suited to resolve a highly-charged moral dispute. Like
Roe,
Obergefell will not resolve the debate but, instead, trigger a durable opposition. We add a third possible path, drawing on the evolving public discourse on polygamy since the Supreme Court upheld prohibitions in
Reynolds v. United States (
1878). The politics of polygamy shows that, if SSM opponents are delegitimated, they may reemerge as legitimate participants in the public sphere. These paths offer insights into uncertainties, contingencies, and predictions regarding the durability of SSM resistance and other oppositional movements. They also lead to revisionist interpretations of the effect on public discourse flowing from these three seminal court decisions. The politics of interracial marriage (after
Loving) shunned the losing political faction from the public forum, while those of abortion (after
Roe), and, recently, polygamy, illustrate a more vibrant, pluralist model of deliberation. Whether SSM opponents will mimic a
Roe model, or follow the trajectory of
Loving or
Reynolds, is now the question.
