The New York times has an interview (gift link) with Amy Coney Barrett. It covers a lot of topics that are unrelated to this thread, and she refuses to explicitly discuss any possible upcoming cases, but there are a couple of quotes that to me strongly suggest she would likely be against over turning Obergefell. There are relatively large quotes but they represent only a small part of the much larger interview so I think they should be OK under fair use.
When discussing which “liberties” she sees as covered by the 14th Ammendment:
Douthat: Liberties, to be clear, that are not themselves enumerated in the Constitution —
Barrett: That are not themselves enumerated. Well, to be tricky — and I’ll try to avoid going into complete law professor mode — that word “liberty” in the 14th Amendment does incorporate many of the guarantees that are specifically stated in the Bill of Rights and make it so that states have to respect, say, freedom of religion, the freedom from unreasonable searches and seizures and so on. Because were it not for the 14th Amendment, everything in the Bill of Rights would constrain only the federal government.
So yes, that word, “liberty,” does protect some content above and beyond things that are expressly stated in the Constitution. But you see the problem. I might think a lot of things are in “liberty” that you may not think are in “liberty” that one would disagree with. And there’s a lot of risk — this has been a very contested area of constitutional law for a long time — in making judges the final arbiters of exactly what the content of that word, “liberty,” is.
So in an effort to reconcile this idea that the Supreme Court is neither a constitution maker nor a democratically representative body, a much less branch of government, the test says: Well, if there are some things that are so deeply entrenched and so fundamentally a part of American society that they go without saying — we don’t need to enumerate them or say them out loud — then those are the kinds of things where it’s so widely understood that we don’t have to put it in writing; we don’t have to commit it to paper or commit it to parchment, so to speak, then those kinds of things inhere in that word “liberty,” and they have the status of constitutional guarantee.
But that’s a small step.
Douthat: What would be some examples of those kinds of liberties, apart from the abortion question?
Barrett: Marriage, the right to direct the upbringing of one’s children — these are all ones I’m pulling from precedent — the right to use contraception.
The court has said that the ones that are not included are the right to assisted suicide and the right to abortion. I think those are probably the two most prominent ones that have been held not on the list.
Later on when they are discussing overturning precedent
Douthat: How do you tell when it’s OK to overturn precedent?
Barrett: So stare decisis itself is a doctrine and has its own legal tests. We’re talking about Dobbs. That’s a good example. I’ve talked about the doctrinal test of substantive due process, which is the way to measure whether Roe was rightly decided.
But the question of when you decide whether to overturn precedent is never just: Is this decision right or wrong? Because if that’s the only question, well, then you don’t need stare decisis, because you just decide what you think is right every time.
The doctrine of stare decisis is the second stage of the analysis, because if a decision is wrong, then you have to decide whether you should keep it, for many of the reasons you say — stability, reliance interests, etc.
Douthat: What are reliance interests? What does that term mean?
Barrett: Reliance interests are things that would be upset or undone if a decision is undone. Typically, when the doctrine of stare decisis was first articulated in the law, the classic examples were property and contract. If you have a particular law that governs the sale of homes, for example, and the court overturns a precedent of real estate or property law, all of a sudden it could call into question title to hundreds of houses in a way that would be hard to undo.
And you can imagine many things like that, particularly in commercial interests. Those are the classic law professor cases where you point to reliance interests.
Douthat: Can there be social reliance interests, in the sense of people making life choices on the basis of a right being protected?
Barrett: Depends what you mean by social reliance interests.
Douthat: Well, to make it concrete: in Obergefell v. Hodges, 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 —
Barrett: And children.
Douthat: And everything else, right? On the basis of that ruling.
Barrett: Yes, those are absolutely reliance interests, but I wouldn’t describe them — when you said social reliance interests, that sounds like things in the air. But those are very concrete reliance interests. So those would be classic reliance interests in the terms of the law, in terms of legal doctrine. Those are financial, those are medical, those are — well, you can imagine, going on.
So my reading is that it appears that she does believe that marriage is a “liberty” that is protected by the 14th amendment and that given that people have made decisions on that basis of same sex marriage being legal that would cause chaos if undone. So if Roberts, who in general seems to want to keep the court out of politics, also decides not to rock the boat, there is a good chance that same sex marriage is safe for now.