Is Obergefell Under Threat? A Test For Stare Decisis and the Future of LGBTQ Rights
Part I: Introduction
In 2015, the Supreme Court ruled in a polarizing 5-4 decision that same-sex couples have a constitutional right to marriage under the Due Process and Equal Protection Clauses of the 14th Amendment in the case Obergefell v. Hodges. [1] After this decision, all states were required to recognize same-sex marriages, regardless of the states in which those marriages took place. Obergefell became one of the most essential landmark Supreme Court cases in the fight for marriage equality. Since then, hundreds of thousands of same-sex couples have relied on Obergefell for their marriages to become officially recognized by their respective states and for the benefits that come along with having a marriage license. [2]
However, in January 2025, Idaho lawmakers passed a resolution calling for the Supreme Court to overturn Obergefell. [3] This was followed by a similar resolution passed by North Dakota in February. [4] While these resolutions have no legal power, they may signal a resurging political effort to overturn the 2015 case. These recent developments have raised alarm bells for supporters of Obergefell, many of whom now believe that the case may be overturned if it reaches the Supreme Court. However, to succeed, challengers would not only need to convince five justices to overturn the case on its merits but also to convince them to disregard stare decisis.
Despite the court’s originalist shift since 2015, I argue it is unlikely that Obergefell will be overturned due to two main obstacles: 1) the principle of stare decisis would serve as a major roadblock to challengers, and 2) even on a vote on the merits of the case, a challenge to same-sex marriage may struggle to find a five-justice majority.
Part II: Stare Decisis
Stare decisis is a legal principle that encourages judges to honor precedents established by rulings in previous cases. According to the American Bar Association, “respect for precedents gives the law consistency and makes interpretations of the law more predictable—and less seemingly random.” [5] Of course, this does not necessarily mean the Supreme Court will or should always follow this doctrine. There are exceptional circumstances in which the court will decide to overturn precedent.
A recent example that caused the most alarm for Obergefell’s safety was the overturning of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) in Dobbs v. Jackson Women’s Health Organization (2022). [6] The Dobbs decision led many to believe that the current court would overturn other precedents such as Obergefell, especially after Justice Thomas’s suggestion to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” in his concurring opinion. [7] However, notably, no other justice joined this opinion. To understand why, we must understand why the majority didn’t apply stare decisis in Dobbs and compare those reasons to Obergefell.
The majority of Dobbs lists five factors that were considered when deciding whether or not to overturn Roe and Casey. 1) Nature of error: The majority asserts that the nature of Roe and Casey’s errors was particularly erroneous because they “short-circuited” the democratic process by removing the issue of abortion from the voting booth. [8] This reasoning would likely still apply to Obergefell, as the dissents on that case made similar arguments. [9] 2) Quality of reasoning: The majority expressed their belief that Roe’s decision was poorly reasoned, criticizing the majority’s lack of constitutional foundation for their viability test. [10] Although this factor is likely more subjective than anything else, it is worth noting that Alito’s dissent in Obergefell criticized the nature of the error far more than the quality of reasoning. [11]. In application to Obergefell, reason two could plausibly go either way. 3) Workability: The majority argues the “undue burden” test established by Casey lacks a consistent and predictable application. [12] This reasoning would not apply to Obergefell since there is hardly any debate or inconsistency with how to legally define “same-sex marriage,” unlike “undue burden.” Thus, Obergefell can be applied predictably and consistently. 4) Disruptive effects: The majority claims that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines,” including: a) the strict standard for facial constitutional challenges; b) the third-party standing doctrine; c) standard res judicata principles; d) ordinary rules on the severability of unconstitutional provisions; and e) First Amendment doctrines. [13] However, the majority does not elaborate on the definition of these “distortions” or how they were specifically disrupted by Roe. For example, a distortion of “First Amendment doctrines” is an incredibly broad term that could be applied to virtually any case concerning personal liberties. Without elaborating on the idea of legal distortion, it’s difficult to see how this vague standard could be applied to Obergefell. 5) Concrete reliance: the court had to consider whether overturning Roe and Casey would “upend substantial reliance interests,” which the majority defines as “where planning of great precision is most obviously a necessity.” [14] In other words, are there people who would substantially rely on the precedents to make planned decisions? In the majority’s view, there were no concrete reliance interests in Roe and Casey because abortion is an “unplanned” activity. [15] However, this same reasoning would not apply to Obergefell since marriage is a planned activity that requires a thorough investment by those participating in it. Furthermore, there are many individuals who are currently legally married within same-sex marriages, a large portion of which are reliant on Obergefell. If the court were to overturn Obergefell, the legal status of these marriages would be put into jeopardy.
Overall, much of the reasoning that the majority in Dobbs provides for disregarding stare decisis would not be applicable in a challenge to Obergefell. While notions of “short-circuiting” the democratic process may still apply, it is difficult to imagine that one reason alone would convince a majority of the justices to flout stare decisis, especially considering the potentially detrimental effects doing so would have on the court’s reputation. On top of the argument comparing Obergefell and Dobbs not holding up, the merits of the case may face similar roadblocks.
Part III: The Merits
From the outset, it seems like Obergefell would be dead on arrival based on the supposed ideological composition of the court, with six perceived conservative justices that would be, on paper, opposed to Obergefell. However, some justices are not as ideologically opposed to constitutional protections for same-sex marriage as it would seem. Two justices in particular, Justice Gorsuch and Chief Justice Roberts, stand out as notable key votes.
In 2020, Justice Gorsuch wrote the majority opinion in the landmark case Bostock v. Clayton County, which ruled that Title VII of the Civil Rights Act prevented workplace discrimination based on sexual orientation or transgender status. [16] Gorsuch justified this ruling by explaining that discriminating against someone for their sexual orientation or transgender status is inherently the same as discriminating based on their sex (which is prohibited by Title VII). For example, suppose a manager fires a man for liking men, while they do not fire a woman for also liking men; in this instance, two different sexes are being treated differently for the same conduct, which would thus incur a violation of Title VII.
This logic from Gorsuch opens up potential avenues for a majority of justices to reaffirm the constitutional right to same-sex marriage. The most heavily criticized aspect of Obergefell by its opposition is its reliance on substantive due process to confer a “right to privacy” for same-sex couples to marry. There is no doubt that Justice Gorsuch would also share those criticisms, considering his self-proclaimed originalist stance. However, Obergefell was also justified via the Equal Protection Clause (EPC), and although its usage did not use the same logic as Bostock’s, it is possible that Gorsuch could also apply similar legal reasoning to this case since the court has already established a precedentthat the EPC protects against sex discrimination via intermediate scrutiny. [17] In other words, even if Justice Gorsuch opposes the use of the Due Process Clause to justify same-sex marriage, he may establish a new precedent that still rules state laws banning same-sex marriage as unconstitutional, but this time primarily relying on the EPC and his reasoning in Bostock.
This would not be possible without Chief Justice Roberts, who would provide a crucial fifth vote to secure a majority. Roberts also joined the majority in Bostock and although he was a dissenter in Obergefell, has since seemingly accepted the case as an established precedent based on his joining of the majority opinion in Pavan v. Smith (2017), which ruled that state laws preventing same-sex couples from appearing on their child’s birth certificate are unconstitutional via Obergefell [18]
Conclusion:
Based on the evidence presented, I believe that a challenge to overturn Obergefell v. Hodges would ultimately fail. The principles of stare decisis will be the most demanding obstacle in the way of challengers, reinforcing the stability of the judicial system. Furthermore, it seems as though the constitutional merits of same-sex marriage may persevere thanks to Bostock. However, the extent of Bostock’s influence will be revealed once the court announces its decision in United States v. Skrmetti, which is a case that seeks to apply Bostock’s logic to transgender status via the EPC. [19] Although same-sex marriage will likely persevere thanks to the 2022 Respect for Marriage Act, which forces states to recognize legally performed same-sex marriages, it is still important to acknowledge the role a challenge to Obergefell plays in the stability of the judicial system and the future of LGBTQ rights.
Bibliography
[1] Obergefell v. Hodges, 576 U.S. 644 (2015)
[2] Jeffery, Jones, “10.2% of LGBT Adults Now Married to Same-Sex Spouse.” Gallup.com, October 16, 2024.
[3] Clark Corbin, “Idaho House Calls on U.S. Supreme Court to Reverse Same-Sex Marriage Ruling,” Idaho Capital Sun, January 28, 2025
[4] Michael Achterling, “North Dakota Resolution Urging End to Same-Sex Marriage Advances,” North Dakota Monitor, February 25, 2025
[5] “Understanding Stare Decisis,” American Bar Association, December 16, 2022
[6] Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022)
[7] Ibid.
[8] Ibid., 44
[9] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, J., dissenting)
[10] Dobbs v. Jackson Women’s Health Organization, 597 U.S. __, 45-56 (2022)
[11] Obergefell v. Hodges, 576 U.S. 644 (2015) (Alito, J., dissenting)
[12] Dobbs v. Jackson Women’s Health Organization, 597 U.S. __, 56-62 (2022)
[13] Ibid., 62-63
[14] Ibid., 64-66
[15] Ibid., 64
[16] Bostock v. Clayton County, 590 U.S. __ (2020)
[17] Craig v. Boren, 429 U.S. 190 (1976)
[18] Pavan v. Smith, 582 U.S. __ (2017)
[19] Amy Howe, “Supreme Court to Hear Challenge to Ban on Transgender Health Care for Minors,” SCOTUSblog, December 4, 2024