Why Obergefell will not be Overturned

Why Obergefell v. Hodges Is Unlikely to Be Overturned by the Conservative Supreme Court

In light of the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade, questions have arisen about the future of other landmark cases rooted in substantive due process.

Among these, Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide, appears particularly vulnerable. However, key distinctions in the legal foundations and societal acceptance of Obergefell make it far less likely to be overturned.

As of 2023, public support for same-sex marriage remains at an all-time high, with 71% of Americans supporting its legality, according to Gallup, and 63% according to Pew Research. This represents a dramatic shift from 2004, when only 31% supported same-sex marriage, and 60% opposed it.

This widespread societal acceptance, combined with the robust legal grounding of Obergefell, makes it more resilient than the recently overturned Roe.

Substantive Due Process: A Robust Foundation in Obergefell

The principle of substantive due process, which protects certain fundamental liberties from government interference, is central to Obergefell.

Critics of substantive due process often argue that it allows the judiciary to create rights not explicitly enumerated in the Constitution.

This critique formed the backbone of the Dobbs majority opinion, which asserted that abortion was not a right “deeply rooted in the Nation’s history and traditions.”

The same argument could, in theory, be applied to same-sex marriage.

However, Obergefell rests on a much stronger foundation within substantive due process jurisprudence.

Marriage as a Fundamental Right

Marriage, unlike abortion, has long been recognized as a fundamental right under the Constitution.

Cases such as Loving v. Virginia (1967), which invalidated bans on interracial marriage, and Zablocki v. Redhail (1978), which struck down restrictions on marriage for individuals behind on child support, affirmed that the right to marry is protected by the Fourteenth Amendment.

These precedents provided a clear legal framework for Obergefell, which simply extended the fundamental right to marry to same-sex couples.

Equal Protection: A Dual Pillar of Support

In addition to substantive due process, Obergefell relies on the Equal Protection Clause of the Fourteenth Amendment, which prohibits states from denying individuals equal treatment under the law.

The Court in Obergefell emphasized that excluding same-sex couples from marriage was inherently discriminatory, relegating them to second-class citizenship.

This dual reliance on both due process and equal protection strengthens Obergefell’s foundation.

To overturn Obergefell, the Court would need to revisit not only substantive due process but also long-standing precedents affirming equality under the law — a much broader and more legally fraught endeavor.

Public Opinion: Stabilizing Obergefell

While public opinion alone cannot dictate judicial decisions, it plays an important role in the practical durability of landmark rulings. The Supreme Court, though insulated from direct political pressures, is not immune to the broader social and cultural context in which it operates.

Entrenched Support for Marriage Equality

Since Obergefell, marriage equality has become a deeply ingrained part of American life. According to a 2023 Gallup poll, 71% of Americans support legal same-sex marriage, a dramatic increase from just two decades ago. Pew Research similarly found that 63% of Americans favor same-sex marriage, with only 34% opposed. This growing acceptance reflects a fundamental shift in societal attitudes, even among conservatives.

The practical impact of Obergefell is evident in the substantial number of same-sex marriages that have occurred since the ruling. As of 2022, there were approximately 741,000 same-sex married-couple households in the United States, according to the Census Bureau. This represents a significant increase from earlier years, as marriage equality became the law of the land. In 2021, same-sex couple households surpassed 1 million for the first time, with 59% of these couples being married. Overturning Obergefell would disrupt the lives of hundreds of thousands of married same-sex couples, unraveling legal rights related to property, inheritance, child custody, and healthcare decisions.

Court Legitimacy and Public Backlash

The Supreme Court’s legitimacy depends, in part, on its ability to maintain public confidence. Overturning Obergefell would likely provoke widespread backlash, further eroding the Court’s credibility. In contrast to abortion, which remains a deeply divisive issue, marriage equality enjoys broad support across political and demographic groups, making it politically and socially risky for the Court to revisit the ruling.

The Conservative Court’s Approach Post-Dobbs

Although the Dobbs decision raised concerns about the future of substantive due process, the majority opinion explicitly limited its reasoning to abortion. Justice Samuel Alito emphasized that abortion is “fundamentally different” because it involves the potential life of an unborn child, a factor not present in cases like Obergefell. While Justice Clarence Thomas’s concurrence suggested revisiting other substantive due process precedents, including Obergefell, this view did not command a majority of the Court.

The Court’s decision in 303 Creative LLC v. Elenis (2023), while controversial, reflects a commitment to balancing competing constitutional rights rather than an intent to narrow the scope of LGBTQ+ rights. By ruling that compelling speech in support of same-sex weddings could violate the First Amendment, the Court focused on the principle of individual expression rather than questioning the legitimacy of same-sex marriage itself. Importantly, the decision does not diminish the legal protections established in Obergefell v. Hodges but instead delineates the boundaries of how those protections interact with other constitutional freedoms. This approach suggests that the Court is more focused on resolving conflicts at the margins of constitutional rights than dismantling core precedents, reinforcing its role as an arbiter of competing liberties rather than an agent of restriction.

Conclusion

While the overturning of Roe v. Wade in Dobbs has fueled speculation about the fate of other substantive due process cases, Obergefell v. Hodges is unlikely to face the same fate. Unlike Roe, Obergefell rests on a long-recognized fundamental right — the right to marry — and is further strengthened by its reliance on both substantive due process and the Equal Protection Clause. Additionally, Obergefell enjoys overwhelming public support, with a majority of Americans embracing marriage equality as a settled part of modern life.

The Supreme Court’s cautious approach to LGBTQ+ rights post-Dobbs, as demonstrated in 303 Creative LLC v. Elenis, suggests a preference for resolving conflicts at the margins rather than dismantling core precedents like Obergefell. By focusing on balancing competing constitutional rights, the Court avoids the widespread legal and societal disruption that would follow a reversal of marriage equality. In a legal and cultural landscape where same-sex marriage has become deeply entrenched, the decision appears secure for the foreseeable future.