Former Supreme Court Justice Anthony Kennedy, who wrote the landmark opinion legalizing marriage equality nationwide, cited a surprising reason he doesn’t think the decision is in any danger of being overturned.

“A large part of the reasoning in the opinion, and the background of the opinion, was that I had not known how many children were adopted by [LGBTQ+] parents,” he told CNN in a recent interview. “At first, I thought there were 75,000 children or so. It’s in the hundreds of thousands.”

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These families, he said, now have a “substantial reliance” on the Obergefell v. Hodges decision, which has granted them stability. If the decision were overturned, Kennedy said it “would be a tremendous reliance problem.”

Reliance is a legal term defined as “the dependence by one person on another person’s or entity’s statements or actions, particularly where the person acts upon such dependence.” That is, people make life decisions based on what the law is, so ruling that a law means something different has to take that “reliance” into account. Such reliance must be considered “reasonable.”

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In the Obergefell opinion, Kennedy outlined the costs of not allowing couples with children to legally marry: “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.”

He wrote that the fact that so many children are already being raised in queer households “provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.”

He also emphasized, however, that the right to marry is not less meaningful for those who do not have children and that procreation “is not and has not been a prerequisite for a valid marriage in any State.”

Nevertheless, it seems that Kennedy believes queer couples with children may be the key to keeping marriage equality in place.

In the same interview, he also decried the fact that court opinions have become increasingly politically charged and that personal beliefs seem to be taking precedence over legal reasoning.

“It’s very important to me that the opinions be written in a more moderate tone than they are,” he said. “Ultimately, the law depends on the respect given to the court’s opinions. That respect is undermined if there is a quarrelsome rhetoric.”

The prospect that the Supreme Court could overturn Obergefell has been a worry among LGBTQ+ advocates since the court overturned Roe v. Wade in the case of Dobbs v. Jackson Women’s Health Organization.

After the Dobbs decision, Supreme Court Justice Clarence Thomas argued that the same legal reasoning could also be used to overturn marriage equality. 

Anti-LGBTQ+ Supreme Court Justice Samuel Alito has also been outspoken about his hatred of the Obergefell decision, though he recently claimed the precedent set by the court’s ruling is “entitled to respect.”

The comment contradicts many other statements by Alito, including a 2020 opinion he released with Thomas calling for marriage equality to come to an end because of its “ruinous consequences for religious liberty.” Those consequences were that religious people are sometimes called homophobes, and therefore their “liberty interests explicitly protected in the First Amendment” were violated. The justices declared that with Obergefell, “the Court has created a problem that only it can fix.”

In September, conservative Supreme Court Justice Amy Coney Barrett also downplayed fears that the Court would overturn marriage equality.

Many have been especially worried since the infamous former county clerk Kim Davis recently petitioned the Supreme Court to take her case, which argues that people should be able to refuse recognition of same-sex marriages based on religious beliefs.

Anti-LGBTQ+ advocates hope Davis’ case could be the one to lead the justices to overturn marriage equality. But LGBTQ+ legal experts believe her case is too weak and that it’s far more likely that the court will use free speech and religious freedom claims to roll back queer civil rights.

Beyond that, the Supreme Court receives about 10,000 petitions a year asking it to hear various cases — the Court agrees to hear only 75 to 85 of them, according to The Judicial Learning Center.

Even Bill Powell, the lawyer representing the same-sex couple in Davis’ case, thinks the Supreme Court won’t hear her case.

“Not a single judge on the U.S. Court of Appeals showed any interest in Davis’ rehearing petition, and we are confident the Supreme Court will likewise agree that Davis’ arguments do not merit further attention,” Powell said.

Even if the Supreme Court did take the case, Chris Geidner, the gay publisher and author of Law Dork, told LGBTQ Nation in January that he didn’t think a case like Davis’ would provide sufficient legal reasoning to overturn same-sex marriage entirely.

Rather, he said that a successful religious freedom or free speech challenge to Obergefell would do other “bad things,” like hollow out civil protections or public accommodations for same-sex couples, essentially inconveniencing or endangering LGBTQ+ couples but not outright denying them the right to a marriage license.

Gay legal journalist Joseph Mark Stern agrees somewhat with Geidner’s take. In recent Bluesky posts about Davis’ case, “At this Supreme Court, the biggest realistic threat to gay rights isn’t outright reversal of Obergefell, but the ongoing abridgment of gay equality in the name of religious liberty and free speech,” Stern added. “The Supreme Court has also weaponized the First Amendment to legalize discrimination against same-sex couples in public accommodations, a project that will expand in the coming years.”

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