Photograph by Nathaniel St. Clair
On November 18, 2003, the Massachusetts Supreme Judicial Court (SJC) ruled that gay and lesbian couples could no longer be excluded from obtaining a civil marriage. Six months later, on May 17, 2004, same-sex marriage was legally recognized in Massachusetts.
Nearly a decade later, on June 26, 2015, the U.S. Supreme Court ruled, in Obergefell v. Hodges, that the right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment of the Constitution.
The Census Bureau estimates that there were 1.2 million same-sex couple households in the U.S. in 2021. It also estimated that “roughly 710,000 of the same-sex couple households were married and about 500,000 were unmarried.”
In June 2022, the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization to overturn the landmark Roe v. Wade (1973) decision legalizing a woman’s right to an abortion. In his concurring opinion, Justice Clarence Thomas wrote that the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” He wrote:
Because any substantive due process decision is ‘demonstrably erroneous’… we have a duty to ‘correct the error’ established in those precedents… After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.
In addition to Obergefell, he suggested that Court should reconsider Griswold v. Connecticut (1965), which ruled that states had no right to ban contraception; and Lawrence v. Texas (2003), which prohibited states from banning same-sex sex.
A recent in-depth analysis by The New York Times revealed how the conservative right, including many politicians, church groups and the Federalist Society, built a decades-long campaign to overturn the Roe decision. “For more than 40 years, a passionate band of conservative and mostly Christian activists tried to find ways to undermine the 1973 Supreme Court ruling that guaranteed a constitutional right to abortion and revolutionized America,” it found. Raising millions of dollars to underwrite their successful campaign, they overturned Roe.
Does the same fate await Obergefell?
The Court’s Obergefell decision was a five-to-four split, with Justices John Roberts, Jr., joined by Clarence Thomas, Samuel Alito and Antonin Scalia dissenting. Chief Justice Roberts insisted that the Constitution does not address marriage and, therefore, the case was beyond the purview of the Court. He said that the core component of marriage was between one man and one woman; consequently, same-sex marriage bans did not violate the Due Process Clause. He argued that the issue should be decided by individual state legislatures. Justice Alito wrote, “you can’t say that marriage is the union between one man and one woman” because it might be labeled “bigotry.”
In 2015, Rowan County (KY) Clerk Kim Davis refused to issue marriage licenses to two gay couples based on her personal opposition to same-sex marriage. The couples sued and, after making its way up the legal ladder, in 2020 the Supreme Court ruled in favor of the gay couples based on the Obergefell decision.
However, Justices Clarence Thomas and Samuel Alito dissented, and Thomas laid out their opposition in no uncertain terms. “Several Members of the Court noted that the Court’s decision [Obergefell] would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman,” he wrote. He added, “Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws.” He then insisted:
Moreover, Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.
By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.
Now four years later, Thomas and Alito are anchors of the Court’s conservative majority.
Kathleen Rainey McStravick, an attorney, has written, “Religious liberty is often employed to create exemptions that allow certain groups to avoid compliance with certain civil laws when those laws are contrary to or pose a substantial burden on an individual’s religious views.” And “traditional” marriage is being promoted to be such a “burden.”
“Holy matrimony” between a man and a woman is considered a sacred commitment. It is at the heart of many Western religions, including the Roman Catholic Church, most Protestant and Anglican denominations and Eastern Orthodoxy as well as Muslim and Jewish communities.
The Supreme Court may invoke this religious tradition to reconsider Obergefell. In 2023, the U.S. Census Bureau found, “Both the marriage and divorce rates of U.S. women age 15 and older declined from 2011 to 2021. In 2021, the U.S. marriage rate was 14.9 marriages in the last year per 1,000 women, down from 16.3 a decade earlier. And the 2021 divorce rate dropped to 6.9 in the last year from 9.7 divorces per 1,000 women in 2011.” It notes, “But the rates varied by state during both time periods.”
If the Supreme Court were to overturn Obergefell, 25 states marriage equality laws may likely be repealed. This is the number estimated by the Movement Advancement Project (MAP) and identifies states with “Unenforceable Constitutional Amendments and/or Statutes Banning Marriage for Same-Sex Couples.” These states are Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and Wisconsin.
If the conservative Court decides to reverse Obergefell, what would prevent it from reversing still other more “liberal” decisions? In this spirit, one can well imagine the Court, following Judge Thomas’s lead, overturning Griswold v. Connecticut (1965) and Lawrence v. Texas (2003). It might well go further and target Eisenstadt v. Baird (1972) which enabled unmarried people to possess contraception; Jacobellis v. Ohio (1964) which redefined what is considered obscene; Engel v. Vitale (1962) found that public prayer in public schools violated the establishment clause; and Brown v. Board of Education(1954) that ended state-sanctioned segregation of public schools.
