A new petition seeks to challenge the Supreme Court’s 2015 same-sex marriage ruling, testing whether Justice Clarence Thomas’s Dobbs concurrence could prompt the Court to revisit Obergefell v. Hodges.
At a Glance
- Dobbs v. Jackson Women’s Health Organization overturned Roe and questioned substantive due process.
- Justice Thomas named Obergefell as a precedent worth reconsidering.
- Kim Davis litigation in lower courts keeps marriage-related disputes active.
- No Supreme Court grant to revisit Obergefell has occurred to date.
- Path to review requires four votes to grant certiorari and a suitable case vehicle.
The Dobbs Framework
In 2022, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, ruling the Constitution does not confer a right to abortion and returning the issue to elected officials. The decision applied a “deeply rooted in history and tradition” test under the Fourteenth Amendment’s Due Process Clause and expressly overturned Roe v. Wade and Planned Parenthood v. Casey. While the majority emphasized that Dobbs applied only to abortion, it reinforced a methodology that could, in theory, be applied to other unenumerated rights.
Justice Clarence Thomas, in a separate concurrence, urged the Court to reconsider all substantive due process precedents, explicitly listing Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. His approach rejects judicial recognition of unenumerated rights through substantive due process, favoring either a text-and-history interpretation or grounding in other constitutional clauses. For litigants and scholars focused on limiting judicial expansion of rights, Thomas’s statement functions as a clear strategic guide.
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Obergefell’s Current Status
Obergefell remains binding precedent nationwide, establishing that same-sex couples have a constitutional right to marry. The Dobbs majority noted its decision did not affect non-abortion precedents, but the divergence between that statement and Thomas’s broader critique has kept speculation alive about future challenges.
Since Dobbs, marriage-related litigation has largely centered on the boundaries between marriage equality and religious liberty. One prominent example is the Kim Davis litigation in Kentucky, arising from her refusal to issue marriage licenses after Obergefell. These cases have persisted in lower federal courts, focusing on damages and qualified immunity rather than the constitutional validity of marriage rights. Without a case squarely presenting the constitutional question, the Supreme Court has not had reason to revisit Obergefell.
The Vehicle for Review
To bring Obergefell back before the Court, petitioners must present a direct constitutional challenge rather than a fact-specific dispute. Such a case would likely argue that the right to same-sex marriage lacks deep historical roots under the Dobbs framework, while also addressing the Court’s precedents on stare decisis and reliance interests. These considerations weigh heavily in cases affecting legal recognition of relationships, public benefits, and family stability.
Four justices must vote to hear a case, and a majority must then be willing to alter or overrule Obergefell. Even with Thomas signaling openness, there is no guarantee of sufficient support for review. In the meantime, lower courts continue to apply Obergefell, while litigants test its scope through exemption claims, enforcement disputes, and religious-liberty defenses.
Strategic and Practical Implications
For those who favor grounding constitutional rights strictly in text and history, revisiting Obergefell would align with the reasoning Thomas advanced in Dobbs. Shifting from substantive due process to historical analysis would return more authority over marriage laws to states and legislatures. However, stare decisis, reliance, and concerns about institutional legitimacy all temper the likelihood of rapid change.
Short-term developments will likely involve incremental challenges in areas like licensing, public employment, and contractual recognition. Long-term shifts would require a Supreme Court majority willing to apply Dobbs’s methodology beyond abortion. Until then, Obergefell remains in force, and disputes will play out in lower courts while the debate over substantive due process continues.