Yes, Marriage Equality Is at Risk, But Not From State Resolutions

State requests for the Supreme Court to overturn the 2015 ruling Obergefell v. Hodges, like what the Idaho House passed this week, hold no weight, but former county clerk Kim Davis is still in court.

By Susan Rinkunas | January 30, 2025 | 5:26pm

Photo: Getty Images Politics

Yes, Marriage Equality Is at Risk, But Not From State Resolutions

On Monday, state legislators in the Idaho House passed a resolution calling on the Supreme Court to overturn its 2015 Obergefell v. Hodges decision that established marriage equality. This is an alarming development, but a state-level resolution is not a vehicle for the court to reconsider the precedent. But something that could find its way to the Supreme Court is an appeal filed over the summer by a notorious figure from the 2010s who happened to have a court hearing on Thursday.

The Idaho resolution says the legislature “calls upon the Supreme Court of the United States to reverse Obergefell and restore the natural definition of marriage, a union of one man and one woman.” The vote was 46-24, per the Idaho Capitol Sun. It now heads to the Senate, but would not get signed by the governor since it’s not a law. A right-wing activist group called MassResistance said it drafted the resolution text for state legislatures and that it’s poised to be filed in five more states—Iowa, Kansas, Michigan, Montana, and North Dakota.

Most Popular

Lead sponsor Rep. Heather Scott (R) made a states’ rights argument on the House floor, akin to what conservatives said about Roe v. Wade. “I would ask you to substitute any other issue and ask yourself, ‘Do I want the federal government creating rights for us, for Idahoans,'” Scott said in her floor debate. “So what if the federal government redefined property rights or nationalized water rights? What does that look like if they came up with some new fair use policy or came up with different ways to define property rights? That is not a decision for the judges; it is a decision for the states.” (Meanwhile, a different Idaho lawmaker is trying to kneecap a possible statewide vote on abortion rights by raising the threshold for ballot measures to pass. Nine sponsors of that anti-democratic bill voted for this alleged states-rights resolution.)

Obergefell was a 5-4 ruling that said there’s a constitutional right to same-sex marriage under the 14th Amendment and overruled state bans on gay marriage.

But the justices in the majority said the right was located in the equal protection clause and the due process clause of the 14th Amendment, which also provided the basis for the Roe v. Wade decision. When the court overturned that precedent in 2022, Justice Clarence Thomas said Obergefell should go, too. “In future cases, we should reconsider all of this court’s substantive due process precedents,” Thomas wrote, citing Obergefell and earlier decisions regarding same-sex intimacy (Lawrence v. Texas, 2003) and the right to contraception (Griswold v. Connecticut, 1965). “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” Thomas notably excluded Loving v. Virginia, another substantive due process case, which protects interracial marriages—like his own union to MAGA soldier Ginni Thomas.

While no other Justice joined that 2022 writing, Justices Thomas, Samuel Alito, and John Roberts all dissented in Obergefell, and there are now three more Republican appointees on the court. The ruling is absolutely at risk.

This brings us to the lawsuit seeking to overturn Obergefell. In the wake of the 2015 ruling, former Kentucky county clerk Kim Davis refused to issue or even sign marriage licenses for gay couples, though a deputy clerk eventually gave them licenses. One couple sued Davis and a jury said in 2023 that she should have to pay them $100,000 in damages plus $260,000 in legal fees. Davis appealed over the damages and argued that Obergefell should be overruled just like Roe.

In a brief to the Sixth Circuit Court of Appeals, her lawyers parroted Thomas’s claim that Obergefell “was wrong when it was decided and it is wrong today because it was based entirely on the ‘legal fiction’ of substantive due process, which lacks any basis in the Constitution.” They also wrote that “even if substantive due process is not itself overturned, Obergefell should be, because the right to same-sex marriage is neither carefully described nor deeply rooted in the nation’s history.” This is a call to the flawed “history and tradition” analysis that Alito used in Dobbs.

The Sixth Circuit held a hearing in the case on Thursday and Davis’ lawyer, Mat Staver, argued that she had a First Amendment right to oppose gay marriage and thereby shouldn’t have to pay damages. The plaintiffs’ lawyer, William Powell, said that was preposterous because free speech protections would only apply to “speech she took in her private capacity outside of her official duties. That is not what happened here. She denied this marriage license as the core of her public duty as a county clerk.”

Still, Staver said in a press release ahead of arguments that “This case underscores why the U.S. Supreme Court should overturn Obergefell v. Hodges because that decision threatens the religious liberty of many Americans who believe that marriage is a sacred institution between one man and one woman.”

A decision from the three-judge panel could come at any time. Staver told the Kentucky Lantern that if the Sixth Circuit rules against Davis, they’ll appeal to the Supreme Court with two arguments: “One, that the First Amendment is a defense in cases like Kim Davis’ for other people who have sincere religious beliefs. But beyond that, that Obergefell should be overturned.”

Some legal experts say Davis’ argument is unlikely to succeed in ending Obergefell because the current appeal is about the amount of jury-awarded damages, not whether the verdict was correct. That said, it’s asking a lot for this Supreme Court to turn away cases because they’re procedurally flawed. The high court did decline to hear an earlier appeal from Davis in 2020, but that was before Amy Coney Barrett was confirmed, giving the court a conservative supermajority.

A Gallup poll conducted in May 2024 found that 69 percent of Americans support legal same-sex marriage, though support among self-identified Republicans has fallen below 50 percent in 2023 and 2024. It’s possible states could pass restrictions or bans on same-sex marriage with the intent to topple Obergefell, as that strategy worked with Roe. Only time will tell, unfortunately.

Yes, former President Joe Biden signed a law in 2022 meant to be a backstop if Obergefell were overturned, but it’s only a partial fix: The Respect for Marriage Act requires all states to recognize same-sex or interracial marriages if they were legally certified in the past or in places where they were legally performed. It does not codify these rights nationwide. So, if Obergefell goes, states would be once again free to ban gay marriage, but they’d have to recognize legal unions for the purpose of benefits like healthcare as well as parental rights.

Great country we have here.