If Obergefell Falls...
"If they take it away again someday, this beautful thing won't change."
On June 26, 2015, the U.S. Supreme Court (SCOTUS) ruled in Obergefell v. Hodges that, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, all states must license marriages between two people of the same sex and must legally recognize same-sex marriages that were lawfully licensed and performed in another state.
Justice Anthony Kennedy, a moderate conservative, cast the swing vote in the 5-4 decision and wrote the majority opinion on behalf of the Court. Justices Breyer, Ginsberg, Kagan and Sotomayor concurred that the right to marry was one of the fundamental liberties protected by the U.S. Constitution, and that the same interrelated principles of personal identity, dignity, autonomy, intimate association, and equality applied with equal force to all persons, regardless of sexual orientation. The majority also found that denying marriage rights to same-sex couples caused harm and humiliation and deprived the children and families of same-sex couples from important legal safeguards associated with marriage. With respect to First Amendment concerns, the Court held that the rights of individuals and organizations to adhere to their personal religious or moral principles did not extend to states being allowed to deny same-sex couples the right to marry on the same terms as different-sex couples.
Justices Alito, Roberts, Scalia, and Thomas disagreed. In their joint dissent, Roberts argued that Constitutional protections and judicial precedents regarding marriage applied only to its traditional definition, and that the question of whether to license or recognize same-sex marriages should be left for individual state legislatures to decide. He also felt that the majority ruling relied on an overly expansive reading of the Fourteenth Amendment’s Due Process and Equal Protection clauses, and that the Court had overstepped its judicial authority to instead take on a policymaking role. Justice Clarence Thomas argued in a separate dissent that the majority opinion presented “potentially ruinous consequences for religious liberty” and reiterated his long-standing disdain for the principle of substantive due process.
What Is Substantive Due Process?
The Fifth and Fourteenth Amendments protect fundamental rights from federal and state government interference by preventing any person from being “deprived of life, liberty, or property without due process of law.” Procedural due process refers to the formal courses of action the government must follow before infringing on a person’s legal rights or civil liberties. Substantive due process asks whether a person’s loss of life, liberty, or property is justified by a sufficient purpose, and requires the government to prove it has a compelling reason for doing so.
Substantive due process also applies to the implied rights that exist within the penumbra of the Constitution’s explicitly stated guarantees, particularly those found in the First, Third, Fourth, Fifth, and Ninth Amendments. For example, the Fourth Amendment’s stated guarantee of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is considered to include a right to privacy, even though the word “privacy” is not specifically mentioned in the Constitution itself. This is further supported by the Ninth Amendment, which states that the existence of specifically enumerated Constitutional rights “shall not be construed to deny or disparage others retained by the people.” Over the last 60 years, SCOTUS has applied the doctrine of substantive due process to multiple landmark rulings on the implied rights of privacy, bodily integrity, and autonomy in personal decisions regarding marriage, family, sexual intimacy, and reproductive rights.
In Griswold v. Connecticut (1965), SCOTUS specifically recognized an implied Constitutional right to privacy when it overturned state-level bans on the distribution, access, purchase, and use of contraceptives for married couples. Loving v. Virginia (1967) unanimously declared that banning interracial marriage violated both the Due Process and Equal Protection Clauses. Eisenstadt v. Baird (1972) extended the Griswold decision to unmarried individuals based on implied bodily integrity and autonomy rights under the Equal Protection Clause. In Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), SCOTUS determined that the right to privacy included the right to choose to have an abortion. Lawrence v. Texas (2003) cited Roe, Casey, Griswold, and Eisenstadt in establishing that the right to privacy, autonomy, and protection from unwarranted government intrusion applies to same-sex physical intimacy.
How Does Substantive Due Process Apply to Obergefell?
The Obergefell ruling referenced Griswold, Loving, Eisenstadt, and Lawrence in defining marriage as a fundamental right under the Due Process Clause and one of the vital personal liberties essential to the orderly pursuit of happiness. It recognized an “abiding connection” between marriage and liberty and found that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” The Court found that state laws banning the licensing and recognition of same-sex marriage were an unjustified infringement on personal liberty, fundamental rights, and the central precepts of equality.
But perhaps even more than that, the Obergefell ruling officially acknowledged something queer people have always known — that same-sex relationships could be more complex and meaningful than simply acting upon mutual lust, and different-sex couples were not the only ones capable of partnerships based on deep emotional connections, shared values, and lasting commitment. As Justice Kennedy wrote on behalf of the Court:
“Lawrence invalidated laws that made same-sex intimacy a criminal act. And it acknowledged that ‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.’ But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”
Substantive Due Process Rights Are Under Attack
In 2022, SCOTUS overturned both Roe and Casey and ended Constitutional protections for abortion rights. In a 6-3 opinion issued along ideological lines, the Court’s conservative majority decided in Dobbs v. Jackson Women's Health Organization that abortion was neither a personal liberty protected by the Fourteenth Amendment’s Due Process Clause nor part of an implied right to privacy under the penumbra of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
The Dobbs opinion claimed that in order for the Due Process Clause to apply, an alleged substantive right must be “deeply rooted in the Nation’s history and tradition” and “essential to scheme of ordered liberty.” Abortion, they noted, was not only absent from the plain text of the Constitution but had also been historically considered a crime [emphasis theirs] in every state of the union. Therefore, instead of being upheld as precedent-setting landmarks of a fundamental legal right, Roe and Casey were both wrongly decided mistakes that unfairly limited the States’ right to regulate or prohibit an action that presented a “profound moral question.”
Justice Thomas used Dobbs as an opportunity to unleash the full force of his hatred for the principle of substantive due process, which he called “an oxymoron that ‘lack[s] any basis in the Constitution’” and insisted that the Court “should eliminate it from our jurisprudence at the earliest opportunity.” In a standalone concurrence that none of the other Justices joined, Thomas wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
Author’s Note: Some readers will have noticed that Justice Thomas, a Black man married to a white woman, rather conspicuously omitted Loving from his list of wrongly decided cases. Despite marriage not being an explicitly enumerated Constitutional right, Thomas views Loving as an Equal Protection Clause landmark, not substantive due process ruling. As he wrote in his Obergefell dissent, banning interracial marriage was an unjustifiable act of “arbitrary and invidious discrimination” …unless the couple in question happen to be of the same sex. For an Originalist who insists on interpreting the Constitution as he believes the text was meant to be understood at the time it was written, Thomas selectively ignores whether the Framers ever intended for him to be allowed to interpret it at all.
Justice Thomas’s Dobbs concurrence was practically an engraved invitation for legal challenges to one or all of the remaining landmark substantive due process rulings. It was only a matter of time before someone accepted his offer. Former Rowan County Clerk Kim Davis has been fighting since 2015 to avoid paying monetary damages for her refusal to issue same-sex marriage licenses to Kentucky couples. She’s lost every single appeal along the way, lost her re-election bid despite changing political parties, and even been sent to jail for contempt of court (more on that whole saga here), but her Liberty Counsel-appointed attorneys still think they have a shot at using her case as the silver bullet to overturn Obergefell and end same-sex marriage equality.
Davis’s case may lack strength in its merits, but a flimsy legal argument certainly hasn’t stopped SCOTUS in the past from inventing the means to achieve a predetermined end decided along ideological lines. The larger issue isn’t whether or not Kim Davis and Liberty Counsel will have another day in court. It’s that even if they don’t, someone else eventually will. Queer rights are only ever written in ink, not stone. The best way I know to be prepared for a potential loss of our hard-won safeguards is to plan ahead, and the best way to start doing that is to know exactly what’s at stake.
Mapping the “If”
If Obergefell were to fall, dormant state constitutional and statutory bans on same-sex marriage would reactivate in 32 states. Until recently, that number was even higher. California, Colorado, and Hawaii adopted ballot measures last November repealing their constitutional bans, and Virginia is working toward setting up a ballot referendum during their 2026 election cycle. Colorado, a former “double ban” state, overwhelmingly voted to repeal its constitutional same-sex marriage ban in November, followed by a repeal of its statutory ban earlier this month. Governor Jared Polis, the nation’s first openly gay governor and the first governor to have a same-sex spouse, signed the “Protecting the Freedom to Marry Act” into law on April 7, 2025.
Overturning Obergefell would prohibit licensing and officiating any new same-sex marriages in states with reactivated bans, but it would not automatically nullify any existing marriages or allow states not to legally recognize same-sex marriages that were validly licensed and performed in other states or U.S. territories. This means that, for example, a same-sex couple married in Minnesota, Nevada, or Puerto Rico could still travel or relocate to Wisconsin, Utah, or Georgia without having their marriage invalidated at the state line or losing any of the associated legal benefits. We have the Respect for Marriage Act to thank for that.
What is The Respect for Marriage Act and What Does It Do?
The Respect for Marriage Act of 2022 is Congressional legislation that formally repealed the 1996 Defense of Marriage Act, or DOMA, which denied federal recognition of same-sex marriage and allowed states with statutory or constitutional bans to refuse to recognize same-sex marriages that were performed in other states.
By defining "marriage" and "spouse" in ways that only included different-sex couples, DOMA deprived same-sex couples of a vast number of legal rights and privileges, including next-of-kin status for estate planning and medical decisions, inheritance and survivorship rights, joint tax returns and tax exemptions, access to a partner’s employment benefits, immigration or residency for noncitizen partners, certain domestic violence protections, and the right to live together in military or college housing. Same-sex couples also could not take family medical leave to care for their partners, could not adopt or establish legal relationships to any non-biological children, and could not file petitions for child support, visitation, or custody if the relationship ended.
SCOTUS determined in United States v. Windsor (2013) that DOMA’s “one man, one woman” federal marriage definition was unconstitutional on equal protection grounds under the Fifth Amendment’s Due Process Clause. Two years later, the Obergefell ruling struck down the portion of DOMA that allowed individual states not to recognize same-sex marriages performed in other states. The Respect for Marriage Act provides federal authority to recognize both interracial and same-sex marriages and their related rights and privileges. This reinforces the Loving and Obergefell ruling but does not fully codify them. The Constitutional power to determine and control marriage licensing requirements resides with the individual states and cannot be dictated by Congress.
An important note: The Respect for Marriage Act has two significant shortcomings. First, it specifically allows religious-based nonprofits, organizations, and educational institutions to deny “services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” Secondly, disabled adults of all genders and orientations still do not have full marriage quality, because they automatically lose any Social Security and Medicare benefits, and often their Medicaid benefits, if they marry a nondisabled adult. The Respect for Marriage Act does nothing to address or prevent this.
Avalanche Effect Potential
If Obergefell is ever overtured, this would also clear the way for Congress to repeal the portion of the Respect for Marriage Act that requires same-sex marriage recognition between different states. The Windsor ruling would still protect the portion of the Act that mandates federal recognition and benefits. There is no sign at all that Windsor is currently targeted for an overturn attempt. That said, if the worst should ever come to pass and Windsor did fall, queer couples would once again face a legal landscape where the validity of all same-sex marriages, both new and existing, stopped at the state line and did not functionally exist for federal purposes.
Another, lesser-known queer rights landmark would be also endangered by an Obergefell overturn. Pavan v. Smith (2017) determined that an Arkansas law blocking same-sex couples from having both spouses’ names on their children’s birth certificates violated both the Due Process Clause and the Equal Protection Clause. The decision relied on the argument that under Obergefell, same-sex couples should have the same right as different-sex couples to list the non-biological parent on a child’s birth certificate if that parent is married to the child’s biological mother. Depending on how any potential Obergefell overturn ruling is worded, making same-sex marriage legality a “States’ Rights” issue again could have complex legal implications for queer couples who conceived their children through third-party sperm or egg donation.
Planning Ahead is Panic Prevention
As much as we can try to predict what the Trump Administration and a 6-3 conservative majority SCOTUS might do to roll back same-sex marriage or other LGBTQ+ rights, there’s really no way for us to know the timeline or full extent and impact of those actions until they happen. Dwelling too much on uncertainties can lead to panic or exhaustion, and nobody makes their best decisions in either of those conditions. A more constructive way for queer folks to protect our joy, ourselves, and our families is to take full advantage of our current legal rights and benefits while we still have them.
If you’ve already proposed to your beloved but haven’t set a wedding date, the sooner you can finalize those plans, the better. If you’re in Wisconsin and need an officiant, I’d be honored to be your huckleberry. For folks planning to end their marriages, be aware of emerging political efforts to repeal no-fault divorce laws, especially if you live in Texas, Louisiana, Nebraska, or Oklahoma. If you have children or are planning to conceive, consult with an attorney about second-parent or stepparent adoption so you can maintain a legal relationship with those children even if your marital status changes.
All queer and trans folks, regardless of marital status, would benefit from having updated wills, hospital visitation authorization forms, advance health care directives, along with beneficiary designations on any bank accounts, insurance policies and retirement savings accounts. An estate planning attorney can provide guidance on which other documents, such as powers of attorney, guardianship designations, or trusts would best fit your specific needs and situation. The LGBTQ+ Bar can help folks in many states find attorneys who specialize in estate planning and family law issues affecting queer and transgender people.
Marriage licenses, tax returns, and joint bank accounts are artifacts of a legal contract. They are not a measure of the value of a relationship or the worth of the people in it. Overturning same-sex marriage rights would be a gross miscarriage of civil justice and a stain on the history of our legal system. It would not, and cannot, stop queer people from loving each other and building our families. For better or worse, richer or poorer, in sickness and in health, we will continue to do so as long as we live, no matter what any court, legislature, or orange-faced tyrant may decree.
*Headline quote is lyrics from “City Hall” by Vienna Teng.
