Would Obergefell v. Hodges Be Decided the Same Way Today?

The Supreme Court held that the Fourteenth Amendment requires all states to grant and recognize same-sex marriages. Justice Kennedy's 5-4 majority opinion grounded the right in both the Due Process and Equal Protection Clauses, identifying four principles supporting the conclusion that marriage is a fundamental right that cannot be denied to same-sex couples: individual autonomy, the importance of the two-person union, safeguarding children, and marriage as a keystone of social order.

Obergefell represented the culmination of a remarkably rapid shift in both public opinion and legal doctrine regarding same-sex marriage. When the first same-sex marriage case, Baker v. Nelson, was dismissed by the Supreme Court in 1972, the claim was considered frivolous. By 2015, public support for same-sex marriage had crossed 60 percent and was rising steadily, particularly among younger Americans. The transformation in public attitudes was matched by a cascade of lower court decisions striking down marriage bans in the years before Obergefell.

The Respect for Marriage Act, signed into law in 2022, provides additional statutory protection for same-sex marriages by requiring federal recognition and interstate recognition of valid marriages. The Act was motivated in part by concerns raised by Justice Thomas's concurrence in Dobbs v. Jackson Women's Health Organization, which suggested that the Court should reconsider substantive due process precedents including Obergefell. While the Dobbs majority expressly stated that its reasoning did not apply to Obergefell, Thomas's concurrence generated significant anxiety about the decision's durability.

Public acceptance of same-sex marriage has continued to grow since 2015, with support now exceeding 70 percent in most polls. Same-sex married couples have been integrated into every aspect of American social and legal life, from tax policy to immigration to estate planning. The reliance interests created by Obergefell are substantial and growing, a factor that would weigh heavily in any reconsideration of the decision.

Obergefell's survival is rated as uncertain not because the result is clearly wrong under current law, but because the doctrinal foundation on which it rests—substantive due process—has been called into question by the Dobbs decision. Justice Thomas's concurrence in Dobbs explicitly identified Obergefell as a decision that should be reconsidered, and the historical-tradition methodology employed in Dobbs could, if applied to marriage, yield a different result, since same-sex marriage lacks the deep historical roots that the Dobbs framework demands.

However, several factors strongly favor Obergefell's survival. First, the Respect for Marriage Act provides statutory protection that would survive any overruling of the constitutional decision, at least for purposes of federal and interstate recognition. Second, the reliance interests of the hundreds of thousands of same-sex married couples are enormous and would weigh heavily in any stare decisis analysis. Third, public support for same-sex marriage is overwhelming and bipartisan, creating significant political costs for any frontal assault on the right.

Moreover, Obergefell could potentially be sustained on equal protection grounds even if the substantive due process rationale were abandoned. The decision's equal protection reasoning—that the exclusion of same-sex couples from marriage constitutes irrational discrimination based on sexual orientation—does not depend on the historical-tradition analysis that Dobbs employed. A Court inclined to narrow substantive due process while maintaining Obergefell's result could shift the doctrinal foundation to equal protection without disturbing the outcome.

The most realistic threat to Obergefell may come not from a direct overruling but from the carving out of religious exemptions that effectively limit the scope of the right. Cases involving religious objections to same-sex marriage, such as Masterpiece Cakeshop and 303 Creative, have already created significant tensions between marriage equality and religious liberty. The Court may continue to expand religious exemptions without formally revisiting Obergefell itself.

The scholarly debate about Obergefell has intensified since Dobbs. William Baude and others have questioned whether the decision can survive the historical-tradition test that Dobbs applied to abortion rights, noting that same-sex marriage lacks the historical pedigree that the Dobbs framework seems to require for substantive due process protection. Kenji Yoshino has countered that Obergefell is better understood as an equal protection decision that does not depend on substantive due process and is therefore not threatened by Dobbs's reasoning.

A separate strand of scholarship addresses the tension between marriage equality and religious liberty. Douglas Laycock has advocated for robust religious exemptions that would allow individuals and organizations with sincere religious objections to decline to facilitate same-sex marriages. Critics like Louise Melling argue that such exemptions would effectively create a license to discriminate that undermines the equality principle at the heart of Obergefell. This debate connects to broader questions about the scope of the Free Exercise Clause and the meaning of government neutrality toward religion in a pluralistic society.

• Dobbs v. Jackson Women's Health Organization (2022)
• Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)
• 303 Creative LLC v. Elenis (2023)
• Bostock v. Clayton County (2020)
• United States v. Windsor (2013)