This year, 2025, marks a decade of marriage equality in America. On June 26, 2015, the Supreme Court made one of its most significant decisions in modern history, Obergefell v. Hodges, establishing the right to marry for same-sex couples nationwide and, as a result, bringing about monumental social change. This 10-year anniversary happens to fall at the same time as the first formal challenge to Obergefell is taking place. Kim Davis, the former Kentucky county clerk who gained national attention for refusing to issue same-sex marriage licenses, even after the 2015 ruling, filed a petition in July to the Supreme Court asking for Obergefell to be overturned. This petition, if granted certiorari, would give an opportunity for the court to reconsider the rights granted from Obergefell. This time, with a conservative supermajority and a bench that has shown little qualms toward upending protected rights.
How Did We Get Here?
When Jim Obergefell’s partner, John Arthur, received news that he had a fatal disease, Jim knew that he wanted his relationship with John to be recognized on paper, through marriage. Because same-sex marriage was not legal under Ohio law, The two travelled to Maryland to get married. Still, the state of Ohio did not recognize their marriage, meaning that when John died, Jim would not be recognized as his living spouse. This led the two to proceed to the courts, in which they won on the district court level. Shortly after, John unfortunately passed away, but the battle still didn’t end there; the state of Ohio continued appealing the decision. Other such cases from same-sex couples throughout the nation were also making their way into the courts, and they were ultimately consolidated and heard before the Supreme Court. Speaking on behalf of the majority, a Reagan-appointed justice and the deciding vote on the case, Justice Kennedy wrote, “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death… Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Thus, the court decided in favor of the same-sex couples on the basis of the Due Process Clause (limiting state infringement on fundamental rights) and the Equal Protection Clause (guaranteeing that all individuals or classes be treated equally under the law), both under the 14th Amendment.
Impact of Obergefell
Since this ruling, public approval towards same-sex marriage has reached nearly 70% among Americans, something unimaginable just two decades prior. Further, around 591,000 same-sex couples have been married since the ruling, making up more than 70% of all the 823,000 same-sex couples nationwide. Most importantly, the ruling has shown that conservative arguments on marriage equality “undermining” the institution of marriage were wrong—new same-sex couples across the country were integrated into society with low divorce rates, many raising children, all the while leaving heterosexual marriages untouched.
Kim Davis’s Petition
A new petition by Kim Davis to the Supreme Court is asking the court to revisit that decision. Her petition alleges that she faced discrimination (a 5-day jail sentence and $100,000 in fines) for refusing to issue marriage licenses to same-sex couples after Obergefell—in addition, claiming that the Obergefell decision was egregious and calling on the court to overturn it.
Paralleling the overturning of Roe v. Wade, the case against Obergefell is that the Constitution does not explicitly guarantee the right for same-sex marriage, and therefore it should be left for the states to decide. In fact, in the Dobbs decision overruling Roe v. Wade, Justice Clarence Thomas signaled to the court to reconsider Obergefell and decisions decided on the doctrine of substantive due process. claiming that the constitution does not protect from government limitation of rights not explicitly enumerated in the constitution.
Although Kim Davis’s challenge to Obergefell is a large development, it seems unlikely that the Supreme Court would take up this specific request. Her arguments on the First Amendment protecting her right to reject same-sex couples for marriage licenses were already rejected by the United States Court of Appeals for the Sixth Circuit, which ruled that the First Amendment did not protect her in her official capacity carrying out state action (e.g., issuing marriage licenses as a clerk.) Also, the court has already declined a petition from Kim Davis in 2020 (which focused only on the damages lawsuit filed against her). Justice Clarence wrote, “This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them.”
The Future of Marriage Equality
However, this does not diminish the possibility of the current Supreme Court overruling Obergefell in the near future. Kim Davis’s petition is just the first direct challenge to Obergfell, one backed by a large conservative legal movement seeking to strike down marriage equality. Looking back to past decisions like Dobbs, the Roberts court has often waited for the “perfect” case to overturn formerly guaranteed rights.
However, overturning Obergefell would be harder to justify than the overturning of Roe v. Wade. While Roe protected abortion through implied substantive rights, the decision in Obergefell had 2 facets: substantive due process and equal protection. The latter being a possible alternative on the occasion the Supreme Court decides to completely reject substantive due process. The decision posited that by denying same-sex couples the right to be married, the states in question were discriminating against those couples by not applying the law equally, therefore violating the Equal Protection Clause. Not only this, but Obergefell has strong Supreme Court precedent supporting it. In Loving v. Virginia, the Supreme Court guaranteed marriage as a fundamental right, using the same dual-constitutional argument to legalize interracial marriage. By overturning Obergefell, the Supreme Court risks unraveling the very protections that legalized interracial marriage, which is quite ironic given the fact that Justice Clarence is in an interracial marriage himself.
As of now, 33 states still have “zombie laws” that would be revived in the case of Obergefell being overturned, as seen in the aftermath of Roe v. Wade. These inactive constitutional amendments and statutes would have immediate effects, possibly banning same-sex marriage in those states and bringing forth legal issues for those already married. Alleviating the effects a bit, the Respect for Marriage Act, passed in 2022 after Roe was overturned, would still maintain federal marital benefits and require marriages performed in another state to be recognized. Even then, benefits at the state level and even the right to get married in the first place for same-sex couples would be hang in the balance
On this 10-year anniversary of Obergefell, as same-sex couples are celebrating a decade of marriage equality, legal challenges and a judiciary that has been overhauling decades of precedent threaten this very right. It is yet to be seen if the Supreme Court actively wants to pursue reversing this critical right, but whether it is this challenge by Kim Davis or another case that will arise in the future, it is clear that the fight for equal rights for same-sex couples is far from over.
Written by Christian Do
