A Decade After Obergefell, Is Same-Sex Marriage Safe?

Time​ Magazine

3 days ago

When Jim Obergefell and John Arthur boarded a charter medical jet one summer day in 2013 to exchange vows, national attitudes towards same-sex marriage were shifting. That May, a record-high 51% of American adults said they were in favor of allowing queer couples to marry, a dramatic uptick from the just 32% who supported marriage equality in 2003, when Massachusetts became the first state to legalize it following a state Supreme Court decision.
The pair's rushed ceremony, which took place on the tarmac of the Baltimore/Washington International Airport due to Arthur's deteriorating ALS condition, cemented the relationship between the couple who had been together for more than two decades.
'It really was the happiest moment of our life together,' Obergefell tells TIME. 'That's for us what marriage represented; that coming together and that public commitment of saying, you're the person I choose to spend my life with, and I will do anything I can for you and with you.'
Five days later, that bliss was dulled after civil rights attorney Al Gerhardstein explained that Obergefell would not be on his husband's death certificate because their marriage was not legally recognized by the state of Ohio. 'We had just jumped through so many hoops to get married that millions of couples would never have to do, and we simply wanted John to die a married man,' Obergefell says.
Their lawsuit, and several more from other same-sex couples, culminated in the Supreme Court's landmark 2015 ruling in Obergefell v. Hodges, which made same-sex marriage the law of the land throughout the U.S.
A decade later, some fear marriage equality could soon be at risk.
Supreme Court Justice Clarence Thomas said as much in a concurring opinion in the 2022 Dobbs v. Jackson Women's Health Organization decision that overturned Roe v. Wade, urging the court to reconsider its rulings in Obergefell, along with two other landmark cases, calling them 'demonstrably erroneous.'
Only two of the justices that ruled in favor of Obergefell—Elena Kagan and Sonia Sotomayor—remain on the court. A subset of the LGBTQ+ community is already facing rolled back protections following the Skrmetti ruling that upheld Tennessee's gender-affirming-care ban for youth. Advocates are awaiting a decision on Mahmoud v. Taylor, a case regarding opt-out measures for books featuring LGBTQ+ characters, and justices are set to hear arguments for Chiles v. Salazar, which is challenging Colorado's conversion therapy ban. This year alone, legislators in at least nine states have filed resolutions asking the Supreme Court to overturn Obergefell, with one such lawmaker citing 'religious persecution.'
'There is a reason to be nervous, certainly more so after Dobbs,' admits University of Maine School of Law professor Jessica Feinberg, who specializes in gender and sexuality law. 'But I guess what makes me feel a little less panicked is [the Obergefell decision] was very recent.' Roe v. Wade and its recognition of a right to abortion, in contrast, had been in place for nearly 50 years before the court overturned it.
Others agree—at least for now.
Legal experts tell TIME that Obergefell's legal standing is twofold, hinging on both the due process and equal protection clause in the 14th Amendment. Due process refers to the fundamental rights guaranteed to individuals. 'It's one of those choices that is so personal and so central to our identity and our economy that we protect it,' says Feinberg.
Thomas's concurring Dobbs opinion argues that the court should re-address its due process findings in Obergefell and other landmark cases, but does not take into account equal protection, which could provide a safety net for marriage equality. 'The legal issues are somewhat different,' says Mary Bonauto, the attorney who argued Obergefell before the court and currently works as the senior director of civil rights at GLAD Law. 'A central holding in Obergefell was that there was an equal right to marry, and that was not an issue in Dobbs.'
She adds that courts must consider additional 'reliance interests' in regards to marriage, which include rules with respect to the way married couples file taxes, purchase property, or are even included on each other's health insurance plan. 'The marriage issue really, is about stability and security, the rights of couples to marry and to keep being able to marry,' she adds.
Feinberg also points to the Respect for Marriage Act, a bipartisan 2022 law that mandated states to recognize same-sex and interracial marriages, as a second layer of protection.
Some activists have pointed to shortcomings in the federal law, notably that the legislation does not bar states from refusing to issue marriage licenses to same-sex couples should Obergefell be overturned. But Cathryn Oakley, senior director of legal policy at the Human Rights Campaign, a nonprofit advocating for LGBTQ+ rights, notes that even if Congress wanted to pass a national law to codify same-sex marriage, it would be difficult because states control marriage rights.
'The Respect for Marriage Act is as close as our separation of powers will let us come to that and really guarantee those rights under federal law,' she says.
'It's hard not to think about marriage for same sex couples being shaken up,' says Bonauto. '[But] the Supreme Court takes 1%, if that, of its cases every year … So given the enormous importance of this issue and how it affects the stability of families in their day to day lives … there's good reason to believe it should remain the law of the U.S.'
Bonauto, who has been at the forefront of court battles for marriage equality for more than two decades, fighting—and winning—cases that guaranteed civil unions and eventually marriage, points to the long path to marriage equality, which was paved by a myriad of challenges.
In the six months between the Massachusetts Supreme Court ruling in favor of marriage equality and the first day licenses could be issued, critics of the decision fought back through constitutional amendment proceedings and lawsuits. It wasn't until June 2007, four years after the initial court ruling, that legislators defeated the final constitutional amendment seeking to overturn it. 'Until that happened, the idea that it could go away was very present in people's minds,' says Bonauto. 'This made it clear marriage was here to stay.'
Roadblocks to marriage equality came up again and again in other states. In order to pass Vermont's state marriage equality law, legislators had to override then-Governor James Douglas's veto. Maine lawmakers passed a state law allowing same-sex marriage, only for voters to revoke it at the ballot box, before voting in favor of marriage once again in 2012.
'There was so much change happening across the nation when it comes to marriage equality,' Obergefell recalls of the time he was fighting for the right a decade ago. 'My experience was overwhelmingly positive. People in support of marriage equality hugging me, crying, telling me stories and explaining what this fight meant to them, to their loved one, to their children.'
For older queer folks, the idea that the Supreme Court could even grant marriage equality seemed like a far away dream, Oakley says. Older colleagues would tell her, 'Well, you know, it never even occurred to me that I might be able to get married,' she remembers. She had a much different perspective. 'I had always assumed I was going to be able to get married eventually. I just didn't know how long it was going to take.'
The Obergefell decision ended the back-and-forth battles and ushered in legal stability for same-sex marriage. In the decade since the court ruled in the case, hundreds of thousands of queer couples have gotten married and started families across the country. More than 750,000 households are now led by same-sex married couples, making up 1.3% of married couples in 2023, the Pew Research Center reports. A solid majority of Americans—nearly 70%, according to a Gallup survey conducted last month—now support same-sex marriage.'Now my daughter is living in a world that's not that much further away, and she's never known a time that marriage equality wasn't legal across the country,' Oakley says. 'In light of Skrmetti and other things, I think it's really important that people keep in mind, ultimately, how quickly LGBTQ rights have progressed.'