top of page
Search

The Killing of Obergefell v. Hodges and the Future of Gay Marriage

  • Writer: Sabrina Soto
    Sabrina Soto
  • Apr 11
  • 4 min read

Ava Hamilton


Marriage equality is a relatively recent pillar of American society, with a long and violent history relating to gay civil rights and equality under the law, including but not limited to the Stonewall Riots of 1969.  Though Massachusetts was the first state to legalize gay marriage in 2004, same-sex couples did not gain the right to equal recognition under the law in all 50 states until 2015, with the Supreme Court of the United States (SCOTUS) ruling on Obergefell v. Hodges.


On July 19, 2013, two men named James Obergefell and terminally-ill John Arthur James filed a lawsuit (Obergefell v. Wymyslo) with the U.S. District Court for the Southern District of Ohio because the state refused to recognize same-sex marriages on death certificates.  Two more plaintiffs (arguing for same-sex marriage recognition) were later added in an amended complaint.  The presiding federal Judge ruled that “Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process and equal protection rights of the parties to those marriages,” and called the ban unconstitutional, forbidding the state from enforcing it. ‘Substantive due process’ refers to a constitutional principle that stops the federal and state governments from interfering in people’s fundamental rights to life, liberty, and property, under the Fifth and Fourteenth amendments’ Due Process clauses.  The defendants (on the side of the state) appealed this decision, the appeals court reversed the decision, and then Obergefell filed a Petition for a Writ of Certiorari, which formally requests SCOTUS to review the lower court’s decision.  Right after the appeal was filed, Richard Hodges stepped in as the new Director of the Ohio Dept. of Health, and the case became Obergefell v. Hodges.


Two years after the complaint was filed, the Supreme Court finally ruled 5-4 that “the 14th Amendment requires all states to license marriages between same-sex couples and to recognize all marriages that were lawfully performed out of state,” cementing same-sex couples’ equal rights under the law.


            Many consider these landmark SCOTUS rulings to be immutable and irreversible.  The concepts of freedom and equality have been so deeply embedded in the foundations of the American identity that to many, the idea that such fundamental rights could be reversed is unthinkable.  However, on January 27, 2025, Idaho passed a resolution requesting SCOTUS to reconsider Obergefell.  This resolution is not a lawsuit, and the Supreme Court must wait for a legal challenge to revisit a previous ruling, so as of right now, no action can be taken in regards to this case.  However, the resolution signals that this ruling is being targeted.  


Current Justice Clarence Thomas wrote a dissenting opinion along with Justices Roberts, Scalia, and Alito.  He discusses the “dangerous fiction of treating the Due Process clause as a font of substantive rights,” and that people are not deprived of “liberty” under the 14th Amendment, as the term refers “only to freedom from physical restraint.”  Further, he argues that liberty “has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”


Justice Thomas concluded that the Due Process clause does not apply to the case, as “whether we define ‘liberty’ as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it” because states have not restricted people’s abilities to live their lives, but instead have “refused to grant them governmental entitlements.”  To Clarence Thomas, marriage recognition is a right the government gives to you, rather than takes away, so its absence does not fall under liberty from government intervention.


Justice Thomas has not changed his opinion since then.  In 2022, when Dobbs v. Jackson Women’s Health Organization reversed the historic Roe v. Wade decision, Thomas stated that the court should “reconsider all of [their] substantive due process precedents, including Griswold, Lawrence, and Obergefell,” because substantive due process decisions are “demonstrably erroneous,” and the court has “a duty to 'correct the error' established in those precedents."


Justice Roberts has since voted in favor of gay rights along with Justice Gorsuch, affirming that workplace anti-discrimination laws apply to LGBTQ+ people (which does not mean they would support Obergefell).  Justice Kavanaugh dissented to that ruling, and has posed for pictures with leader of an anti-gay group.  Justice Barret has previously stated that she intended to follow binding precedents like Obergefell, but many doubt her because of her membership in the Christian People of Praise group. Justice Alito has not changed his opinion since dissenting.  Liberal-leaning Justices Sotomayor, Jackson, and Kagan will likely vote to uphold Obergefell. 


If a lawsuit were brought to the conservative-leaning U.S. Supreme Court, it is likely that the decision will be overturned.  This would not outlaw same-sex marriage, but rather return the decision back to the states, just like the Dobbs decision did with abortion.  While this decision would undoubtedly restrict access to marriage in conservative and red states, there are still some protections in place.  Former President Joe Biden signed the Respect For Marriage Law in 2022, which guarantees that states must recognize any legally certified marriages, current or in the past.  Further, Obergefell did not rule on the Full Faith and Credit clause of Article IV, Section 1 of the Constitution, so the overturning of Obergefell would not redefine the current interpretation of that clause.  Because of these things, pre-existing marriages would not be dissolved, and couples could travel to states where gay marriage is legal to be married.  However, these protections are not complete, as they do not “enshrine a right to same-sex or interracial marriage nationwide,” and as such, cannot be the end of the road in the fight to protect gay marriage.   


Sources








 
 
bottom of page