Don't be an Alarmist, But Don't be Overconfident: On The Prospects of Overturning Obergefell

Zac Krause

Edited by Samantha Tonini, Harper Whittemore, Judge Baskin, and Sahith Mocharla

On August 1st of 2025, the Supreme Court of the United States was formally asked to hear a case explicitly calling for the overturning of Obergefell v. Hodges (2015), the Supreme Court case granting a constitutional right to same-sex marriage [1]. Shortly after the Obergefell ruling, plaintiff Kim Davis made national headlines for refusing to issue a marriage license to the defendants, David Moore and David Ermold. Davis refused on religious grounds and told the couple she was acting “under God’s authority” [2]. Moore and Ermold’s lawsuit sought damages for the emotional distress of Davis’ refusal to issue their marriage license in her position as former Kentucky County Clerk [3]. In 2023, the United States District Court for the Eastern District of Kentucky decided Davis was liable, and a jury awarded the defendants $50,000 in damages apiece [4]. 

Davis appealed to the Federal Court of Appeals for the Sixth Circuit, where she argued that she should not be held liable for refusing to issue the marriage licenses because, among other things, she was adhering to her right to freely exercise her religion under the Free Exercise Clause of the First Amendment of the U.S. Constitution [5]. The Sixth Circuit rejected Davis’ appeal, affirming that the First Amendment does not allow for nor protect any state actions that violate constitutional rights. 

Recently, however, Davis appealed to the Supreme Court. Davis is represented by Liberty Counsel, an evangelical Christian ministry that uses litigation to promote its views on “religious freedom, the sanctity of life, and the family” [6]. The first two questions in the case are related to whether Davis can be found liable for the emotional distress inflicted upon Moore and Ermold. The third question presented asks “whether Obergefell v. Hodges, and the legal fiction of substantive due process, should be overturned” [7].

Since then, the media has been flush with alarmist content predicting the downfall of a right to same-sex marriage. Hillary Clinton urged same-sex couples to marry sooner rather than later because she believes the Supreme Court “will do to gay marriage what they did to abortion—they will send it back to the states” [8]. Politico published an opinion piece titled “5 Reasons the Supreme Court Might Change Its Mind on Same-Sex Marriage” [9] . Law firm Offit Kurman recently uploaded a blog guiding same-sex couples how to navigate estate planning in a world without Obergefell [10]. Compounded with misleading information and misinformation on social media, the media landscape is leading many Americans to seriously doubt whether a right to same-sex marriage is danger. This article analyzes whether there is any validity to the hysteria surrounding Obergefell, examining the context of the case itself and the current Court's willingness to overturn it. 

How Was Obergefell Decided? 

Although Obergefell consolidated 14 other lawsuits, it primarily revolved around James Obergefell and John Arthur [12]. The two were married in Maryland and returned to their home state of Ohio, which at the time did not allow for same-sex marriages to be performed, nor did it recognize same-sex marriages performed in any other state. Mr. Arthur was terminally ill and Mr. Obergefell was merely seeking eligibility to be listed as his spouse on Mr. Arthur's death certificate. 

There were two issues presented in the case: (1) whether states committed a constitutional violation by refusing to liscense a same-sex marriage and (2) whether states were required to acknowledge marriage liscense involving a same-sex marriage undertaken in other states. The plaintiffs argued that the state’s refusal to recognize same-sex marriages amounted to a violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The Court ultimately decided in favor of the plaintiffs in a narrow 5-4 decision written by former Justice Anthony Kennedy. The decision required all U.S. states to recognize same-sex marriages performed within their state, as well as same-sex marriages performed in other states. 

The Fourteenth Amendment Due Process Clause maintains that “No State shall… deprive any person of life, liberty, or property, without due process of law” [12]. Justice Kennedy reasoned that there are four principals and traditions that demonstrate why same-sex marriage ought to be recognized as a fundamental right guaranteed within the “liberty” component of the Due Process Clause. In order to reach the Equal Protection Clause, Kennedy held that the Due Process Clause and the Equal Protection Clause are connected in a profound way and “the challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality.” Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito found themselves in dissent [13]. The Chief Justice authored the main dissent that was joined on by all four dissenters, and Justices Scalia, Thomas, and Alito wrote separate dissenting opinions. 

Reasons to Consider the Threat to Obergefell as Credible

10 years have passed since the landmark decision in Obergefell v. Hodges was decided in 2015. Ten years later, in a world where 70% of Americans support a right to same-sex marriage, it is difficult to imagine such a strong movement in opposition to this right, or a world in which this right might be undermined [14]. But in reality, we might be living in that world. There are a few reasons that validate some of the online hysteria.

The first reason is that the current Court is demonstrably comfortable overturning precedent. Overturning Obergefell requires violating stare decisis, the principle obligating courts to follow in the line of historical precedent [15]. There are a number of factors courts must consider when contemplating overturning precedent, most comprehensively outlined in Planned Parenthood v. Casey (1992), a case in which the Court considered the overturning of Roe v. Wade (1973) in 1992 [16]. First, they consider the quality of the previous decision’s reasoning. Second is the “workability” of a precedent. If they find that the precedential rule is too difficult for lower courts and interpreters to apply, the rule is not workable. Third, the Justice will consider how consistent the rule at hand is with other decisions and precedents. Fourth, courts analyze how society at large has changed since the rule was established. Lastly, and likely most importantly for Obergefell, is the reliance interest on the rule. Because same-sex couples have come to rely on it, overruling Obergefell would result in hardship for the hundreds of thousands of people. There have been nearly 600,000 same-sex marriage since the case was handed down [17]. Other people with a reliance interest would include the children of these couples and the government administrators handling marriage licenses, tax filings, property, and so much more. Stare decisis will undoubtedly serve as a bulwark against the overturning of Obergefell, but to what extent is subject to speculation.

In recent years, the current Supreme Court has shown it will casually overturn decades of precedent. Most prominently, Dobbs v. Jackson Women’s Health Organization (2022) eliminated 50 years of federal abortion rights [18]. In Students for Fair Admission v. Harvard (2023), the Court effectively overturned 50 years of precedent that permitted race-conscious admissions in higher education [19]. In Janus v. AFSCME (2018), the Court overturned a case called Abood v. Detroit Board of Education (1977) which involved the collection of “agency fees” from public sector-unions [20]. Then in Loper Bright Enterprises v. Raimondo (2024), the Court overruled Chevron U. S. A. Inc. v. Natural Resources Defense Council (1984) and the Chevron doctrine, a principle that required courts to defer to a federal agency’s interpretation of an ambiguous statute [21]. In each of these cases, the Court engaged in analysis derived from Casey (called Casey Factors), whether explicitly or implicitly, and decided to overrule an established precedent. The Roberts Court, especially since 2018, has emphasized textual correctness and as a result, precedent has taken a backseat [22].

The second factor pointing toward the overturning of Obergefell as a possibility is the Roberts Court’s gradual erosion of substantive due process. The Fourteenth Amendment Due Process Clause consists of vague guarantees and has been suspect to speculation by legal analysts since it was ratified. While its plain text appears procedural–and it does contain a significant procedural component– courts have recognized a substantive component to the Due Process Clause over time. According to constitutional law Professor Erwin Chemerinsky, “there is no concept in American law that is more elusive or more controversial than substantive due process” [23]. 

Simply put, the Justices have found that the “liberty” component of the clause is eligible for expansive interpretation. This means that when a right is deemed fundamental, government action that infringes on that right must be sufficiently justified. In order to justify the infringement of a fundamental right, the government must have a compelling interest that is narrowly tailored to achieve that interest [24]. 

Substantive due process has a somewhat dark past and was originally used to protect “economic liberties” from government interference. In Lochner v. New York (1905), the Supreme Court struck down a law that limited the number of hours that bakers were permitted to work to 10 hours a day [25]. Justice Peckham held that individuals have a liberty right to freely contract for labor, and that New York’s law violated such a right. From 1905-1937, the Court used the concept of economic substantive due process to strike down 200 other laws, until the Court put an end to the Lochner era and repudiated the concept of economic liberties in West Coast Hotel v. Parrish (1937) [26].

Even before the “liberty of contract” framework became obsolete, the Court began using the Fourteenth Amendment Due Process Clause to secure civil liberties. This kind of substantive due process is still in use today and relevant to a right to same-sex marriage. In Meyer v. Nebraska (1923), the Court struck down a Nebraska law that outlawed the teaching of non-English languages to children below eighth grade [27]. The Court ruled that parents have a fundamental right to parent their children how they see fit, marking substantive due process’ shift toward securing family and personal liberty rights. In another turning point for substantive due process, Griswold v. Connecticut (1965), the Court invalidated a state ban on contraceptives for married couples by recognizing a due process right to marital privacy [28]. Then in the landmark Roe v. Wade, the Court used the privacy framework as put forth in Griswold to guarantee a constitutional right to abortion and strike down an abortion restriction from Texas [29]. Moving toward a right to same-sex marriage, the Court later invalidated a Texas law criminalizing homosexual sex in Lawrence v. Texas (2003) [30]. Finally, in 2015, the Court mandated marriage equality in Obergefell v. Hodges [31]. 

Although not at all formally discarded, the Court has been chipping away at substantive due process for years. Overturning Obergefell could possibly be one of the last steps. In Washington v. Glucksburg (1997), the Court refused to create a substantive due process right to physician-assisted suicide, narrowing the doctrine of substantive due process considerably [32]. They held that fundamental rights must be “deeply rooted in this nation’s history and tradition” in order to qualify for court-mandated protection, a characterization Obergefell unmistakably could never uphold. Recently in Dobbs, the Justices overturned Roe v. Wade, a quintessential substantive due process case, reiterating and reestablishing Glucksburg as the controlling framework when identifying unenumerated rights [33]. Griswold, Lawrence, and Obergefell still remain intact as prime substantive due process cases, but in other recent litigation, the court has come to only utilize the doctrine when it “tracks personal preferences and political philosophies” [34]. Again, Davis’ petition for writ of certiorari directly calls for the “legal fiction” of substantive due process to be overturned [35]. Additionally, one of the amicus briefs (additional filings by interested parties to the court uring a certain outcome) in favor of petitioner that has already been filed argues that Obergefell replicates the errors of Roe and thus should also be overturned [36]. 

The third reason to expect that Obergefell will be overturned is much less theoretical and is grounded in the Supreme Court’s administrative practices. Petitioner Davis filed her petition for writ of certiorari, asking the Supreme Court to hear and decide her case, on July 24 of 2025 [37]. Respondents initially waived their right to file a brief in response, essentially signaling to the Justices that Davis’ petition was not worth their time and that they were confident the litigation would end at the petition, as if to say “this is not worth your time” [38]. The Court could have left the matter alone, however, they requested a response from respondents Moore and Ermold on August 7th, 2025 [39]. According to legal commentator Amy Howe, this move “essentially took Davis’ case out of the group of cases facing virtually automatic denial into the group of cases that could theoretically be granted” [40]. 

The Supreme Court considers a number of factors when trying to decide whether to grant a petition for writ of certiorari, thus opting to hear a given case. In the case at issue, petitioners ask the Court to take the case merely because Obergefell was “wrong when decided,” as opposed to a more traditional justification such circuit split–when two or more circuit courts issue different rulings on the same legal issue [41]. The notorious ‘rule of four’ dictates that the votes of four Justices are required in order to decide to hear a case. The Justices may behave strategically and opt not to hear a case even if they have four votes if they are not confident they will have a fifth vote in order to garner the needed majority to change the rule of law. When Obergefell was decided in 2015, it was decided on a 5-4 basis. Since then, the composition of the Court has changed drastically, which is one of the reasons we can find predictive insight in an analysis of each individual Justice. 

Justice by Justice Analysis

A Justice-by-Justice analysis seeking to predict their course of action will be helpful in predicting the outcome of this petition, or some future case seeking to overturn Obergefell. Of the four Justices who dissented in the Obergefell decision, three still remain on the court–Chief Justice Roberts, and Justices Thomas and Alito. 

Justice Thomas is the first guaranteed vote in favor of overturning Obergefell. In 2020, the Supreme Court was similarly petitioned by Davis and the court denied the petition, choosing not to hear her case [42]. Alongside the order denying Davis’ petition for writ of certiorari, Justice Thomas wrote a concurrence justifying the denial, joined by Justice Alito. Thomas claimed that because of the 2015 decision, “by choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.” Although he agreed that the Court made the right decision by rejecting the appeal because it “(did) not clearly present [the question],” he seemed eager to hear the appeal.

Additionally, in his dissent in Obergefell, he lamented “the dangerous fiction of treating the Due Process Clause as a font of substantive rights,” and contended that “even if the doctrine of substantive due process were somehow defensible… petitioners still would not have a claim,” meaning that he still would not vote in favor of a marriage right for same-sex couples [43]. 

In his concurring opinion in Dobbs v. Jackson Womans Health Organization in 2022, Thomas railed against the theory of substantive due process in its entirety and argued that the Court should rehear all of the cases relying on it. He then called out Obergefell by name as an example [44]. 

Justice Alito is likely the second vote to overturn Obergefell. He also wrote his own dissenting opinion in Obergefell. With a heavy reliance on history and tradition, he critiqued the court for engaging in judicial activism. He further decried how the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” and predicted that those people who hold views in opposition to same-sex marriage “will risk being labeled as bigots and treated as such…” [45].

Yet, at an academic conference in Washington D.C., Justice Alito reiterated some of his main criticisms of the Obergefell decision, but then clarified that “In commenting on Obergefell, I am not suggesting that the decision in that case should be overruled” [46][47]. He continued, “As I said in my opinion for the Court in Dobbs, more than once, nothing in Dobbs was meant to disturb that decision.” This harps back to his writing in the Dobbs decision, in which he authored the majority opinion. In Dobbs, Alito held that “abortion is a unique act,” and thus doing away with a right to abortion would not threaten other rights that have been guaranteed by the Fourteenth Amendment [48]. 

Still, however, Alito was in dissent when Obergefell was decided. As mentioned in the discussion of Justice Thomas, although Alito also joined in Thomas’ concurrence to the denial of petition for a writ of certiorari when Davis initially appealed to the high court, both of the Justices appeared eager to overturn Obergefell. 

Justice Neil Gorsuch replaced the fourth dissenting Justice in Obergefell, Justice Scalia, upon appointment by President Donald J. Trump in 2017. Justice Gorsuch has expressed deep skepticism toward the doctrine of substantive due process. Well before his appointment to the Supreme Court, Gorsuch wrote a book titled The Future of Assisted Suicide and Euthanasia in which he explicitly praised the Court’s reasoning in Glucksburg—the case that sharply curtailed substantive due process [49]. As a proponent of the history and tradition test, we can assume that Gorsuch will vote to strike down Obergefell as a right to same-sex marriage does not have much historical backing. 

In the case Pavan v. Smith (2017), the Supreme Court considered whether Arkansas’s refusal to list both mothers in a same-sex couple on their child’s birth certificate violated the Constitution in light of Obergefell [50]. In a per curiam opinion summarily granted, the Court held that Arkansas had violated Obergefell. A summary judgment means the Court resolved the case without a full trial or oral argument, in this case because it believed the legal question had already been clearly answered by existing precedent. Justice Gorsuch authored a dissent. He sharply criticized the Court for deciding the case summarily or without full oral argument, arguing that this mechanism should not be used when a legal issue is not “free from doubt” [51]. 

Justice Kavanaugh was the second Trump appointee and has also shown relatively consistent skepticism toward substantive due process. Kavanaugh joined the majority to strike down a constitutional right to abortion in Dobbs, and in a concurring opinion, he emphasized that “the Constitution does not grant the nine unelected members of this Court the authority to decide important social and policy issues for the entire nation” [52]. Kavanaugh has repeatedly praised former Justice Antonin Scalia and former Chief Justice William Rehquist for tying liberty only to those rights “deeply rooted in our nation’s history and tradition” [53] [54] [55]. In his senate confirmation hearings, Kavanaugh reiterated his support for the “history and tradition” approach to defining civil liberties [56]. Although Kavanaugh has not authored a comprehensive opinion or paper outlining his theory of substantive due process, his voting record gives us a clear indication that he does not view it favorably and he would likely comprise the fourth vote to overturn Obergefell. 

As for the Chief Justice, Roberts’ opinion in Obergefell was the only dissent he has ever read from the bench, a method used to express very strong feelings about an issue, or to underscore their disagreement [57]. In his dissent, he utilized “history and tradition” to argue that even when the Court has guaranteed rights related to marriage in the past using due process, they did not change the fundamental definition of marriage [58]. Roberts made it clear in 2015 that he was in opposition to a constitutional right for same-sex marriage, but it’s important to recognize that his decision primarily relied on institutional legitimacy as opposed to moralistic objections. Roberts has consistently emphasized that stare decisis is integral to the courts legitimacy, so now that Obergefell is the decided law of the land and its upending would further weaken the institutional legitimacy of the court––his ultimate vote remains unclear [59] [60]. He could most definitely be the fifth vote to overturn Obergefell, but considering his concern with institutional legitimacy, it's difficult to say with any degree of certainty. 

Justice Coney-Barrett is likely the most critical vote in any prediction about Obergefell. She was the third Justice to be appointed by President Trump during his first term and has expressed disapproval of the doctrine of substantive due process. Barrett has written extensively about her ideas regarding the overturning of precedent. In a 2013 Notre Dame Law Review article titled “Precedent and Jurisprudential Disagreement,” Barrett argued that the principle of stare decisis serves as a moderator between the contrary views of members of the Court and is thus important, but, crucially, not absolute [61]. She emphasizes the importance of the reliance interest when contemplating overturning precedent, writing that the reliance interest “forces a Justice to think carefully about whether she is sure enough about her rationale for overruling... If she is not sure enough, the preference for continuity trumps.”

In her recent book titled Listening to the Law, Justice Barrett justified her decision in Dobbs [62]. She claimed that the moral debate over the issue of abortion set it apart from other unenumerated rights such as the “rights to marry, engage in sexual intimacy, use birth control and raise children,” which she described as fundamental [63]. Describing a right as fundamental may be a hint that she is not willing to upend such a right. So while Barrett might claim that Obergefell was incorrect when decided, she is likely to hesitate to overturn it because she considers it to be fundamental and because of the reliance interest at stake. 

The three liberal Justices, Elena Kagan, Sonia Sotomayor, and Ketanji Brown-Jackson, are virtually certain to vote to uphold Obergefell. Justices Kagan and Sotomayor were a part of the original Obergefell majority, having already affirmed that the Constitution protects the right of same-sex couples to marry as an essential component of liberty and equality. The two of them were also dissenters in the Dobbs decision, in which they warned that overturning Roe endangered not only reproductive rights but also the entire line of substantive due process precedents that safeguard intimate personal choices [64]. Justice Sotomayor in particular emphasized that substantive due process protects the most personal decisions individuals can make—about “who to love and who to marry.”

Although not on the Court when Obergefell was decided, we have strong evidence Jackson will vote to uphold a right to marriage equality. Upon her appointment, Human Rights Campaign, the largest LGBTQ+ civil rights organization, claimed that there was no question that Jackson would be a “fierce defender, champion and ally to marginalized communities, including the LGBTQ+ community” [65]. Not to mention, in 303 Creative v Elenis (2023), they warned that the conservative majority was granting a "license to discriminate” against LGBTQ+ peoples [66]. Together, these three Justices represent a concrete bloc committed to preserving Obergefell’s legacy and resisting efforts to curtail its reach. Finally, Justice 

Conclusion: A World Without Obergefell: 

The Court has already released their docket for the October 2025 term without Davis v Ermold listed, but that does not exclude the possibility that the case will appear on it later on [67]. Whether the Court will grant certiorari to Davis’ petition is a very timely matter, but regardless, it's likely that the issue is likely to reappear time and time again, given Davis’ petitioning history. If it isn't this case, another future case could easily serve as a vessel to overturn the precedent established in Obergefell, which is why this article has focused less on the willingness of the Justices to hear the case as it has on predicting how the Justices would vote if the case were in front of them. It has been shown that four of the nine Justices are nearly guaranteed to vote to overturn Obergefell, while the other two conservative Justices–Barrett and Roberts–are less predictable. With two unpredictable Justices, but only a requirement of one additional vote, it seems that much of the online hysteria is justified. If it is not now, with Davis’ petition as its occasion, it could most certainly happen anytime in the near future. 

Although sounding quite alarmist, Hillary Clinton could have been correct in her warning to same-sex couples when she urged them to marry now before it is too late. We know that she was certainly correct in her claim that “American voters… don’t understand how many years the Republicans have been working in order to get us to this point” [68].

Recently Texas legislatures sought to pass HB1738, “An Act relating to the repeal of the offense of homosexual conduct” [69]. This would have repealed Section 21.06 of the Texas Penal Code, which makes it an offense to “engage in deviate sexual intercourse with another individual of the same sex” [70]. The act never passed. Since Lawrence v. Texas was decided in 2003, the state has been unable to enforce the law, yet 55 Republican members of the House of Representatives insisted upon maintaining the status quo in the penal code. If a law has no teeth, one must assume it exists merely as a symbolic gesture. 

Unfortunately, the Texas Legislature’s refusal to remove anti-sodomy language from the Texas Penal Code is only the tip of the iceberg when it comes to sentiments in opposition to same-sex couples. Resolutions calling on the Supreme Court to overturn Obergefell have been introduced in Idaho, Montana, North Dakota, and South Dakota, and Michigan has introduced a resolution condemning Obergefell [71]. Lawmakers in three states—Missouri, Texas, and Tennessee—-have introduced legislation that does not seek to overturn Obergefell, but rather creates a new kind of marriage called a “Covenant marriage,” which is restricted to marriages solely between a man and a woman [72] [73] [74]. 

Although he has later made contradictory statements, in 2015, the day the Obergefell decision was handed down, President Donald Trump tweeted “Once again the Bush appointed Supreme Court Justice John Roberts has let us down” [75]. Until 2024, the Republican Party platform explicitly condemned the ruling in Obergefell [76]. Project 2025, the conservative Heritage Foundations roadmap to governing the country upon the election of a Republican president, contains an explicit endorsement of a family as “a married mother, father, and their children” [77]. Recently, United State Secretary of Defense and former Fox and Friends news host Pete Hegseth gave an endorsement to a video regarding Doug Wilson's “Crusade for Christian Domination in the Age of Trump” [78]. In the video, Wilson states in no uncertain terms that he would like to see the United States go back to an era where homosexuality was a crime. 

The aforementioned examples prove that there has been, and continues to be, an aggressive political movement to do away with protections for same-sex marriage. Now, as the Supreme Court is asked to revisit Obergefell, this movement has spilled over into the realm of real decision-making, and some speculators believe that it could actually come to fruition. Regardless of the timely reality of Davis’ petition and regardless of if the Justices decide to hear her case, the political and legal fight around a right to same-sex marriage is far from over. These efforts underscore that the struggle over marriage equality is no longer abstract—it is immediate and tangible.

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[1] Petition for Writ of Certiorari, Davis v. Ermold, 141 S. Ct. 3 (2020) (No. 25-125).

[2] Dylan Lovan, Clerk who denied same-sex marriage licenses in 2015 is still fighting Supreme Court’s ruling, Associated Press (Jun. 22, 2025),

https://apnews.com/article/kim-davis-clerk-samesex-marriage-supreme-court-8a914cc0563aeb5b7c360a9264ce50ce

[3] Ermold v. Davis, No. 0:15-cv-00046, Compl. (E.D. Ky. July 10, 2015).

[4] Laurel Wamsley, Kim Davis is ordered to pay $100,000 to same-sex couple she denied marriage license, NPR News (Sep. 14, 2023), https://www.npr.org/2023/09/14/1199477637/kim-davis-same-sex-marriage-license-ordered-to-pay-damages

[5] Ermold v. Davis, No. 24-5524 (6th Cir. 2025)

[6] Liberty Counsel, About Liberty Counsel, Liberty Counsel (last visited Oct. 23, 2025), https://www.lc.org/about

[7] See [1]

[8] Brooke Migdon, Hillary Clinton: Supreme Court ‘will do to gay marriage what they did to abortion’, The Hill (Aug. 19, 2025), https://thehill.com/homenews/lgbtq/5459801-hillary-clinton-supreme-court-gay-marriage-abortion/

[9] Kimberly Wehle, 5 Reasons the Supreme Court Might Change Its Mind on Same-Sex Marriage, Politico (Sep. 22, 2025), https://www.politico.com/news/magazine/2025/09/22/same-sex-marriage-might-be-unsafe-00568474

[10] Candace Dellacona, Obergefell in Question: Estate Planning Risks for Same-Sex Spouses, Offit Kurman (Aug. 14, 2025), https://www.offitkurman.com/offit-kurman-blogs/estate-planning-risks-obergefell-overturned

[11] Obergefell v. Hodges, 576 U.S. 644 (2015).

[12] U.S. Const. amend. XIV

[13] Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting).

[14] Gallup, LGBTQ+ Rights, Gallup (May. 18, 2025), https://news.gallup.com/poll/1651/gay-lesbian-rights.aspx

[15] 'Stare Decisis', Legal Information Institute (2021). https://www.law.cornell.edu/wex/stare_decisis.

[16] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

[17] Williams Institute at UCLA School of Law, Nearly 600,000 same-sex couples have married since Obergefell v. Hodges, https://williamsinstitute.law.ucla.edu/press/ss-marriage-data-media-alert/

[18] Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022). 

[19] Students for Fair Admissions, Inc. v. President & Fellows of Harvard College , 600 U.S. 181 (2023).

[20] Janus v. American Federation of State, County, and Municipal Employees., 585 U.S. 924 (2018).

[21] Loper Bright Enterprises v Raimondo, 603 US 369; 144 S Ct 2244; 219 L Ed 2d 832 (2024).

[22] Adam Feldman, The Strength of Precedent is in the Justices’ Actions, Not Words, Empirical SCOTUS (Nov. 28, 2018),

https://empiricalscotus.com/2018/11/28/strength-of-precedent/

[23] Erwin Chemerinsky, Substantive Due Process, 15 Touro Law Rev. 1501 (1999).

[24]  'Strict Scrutiny', Legal Information Institute (2024). 

[25] Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905).

[26] See [23]

[27] Meyer v. Nebraska, 262 U.S. 390 (1923).

[28] Griswold v. Connecticut, 381 U.S. 479, 481, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).

[29] Roe v. Wade, 410 U.S. 113 (1973)

[30] Lawrence v. Texas, 539 U.S. 558 (2003).

[31] See [1]

[32] Washington v. Glucksberg, 521 U.S. 702 (1997).

[33] See [18]

[34] Leah M. Litman, The New Substantive Due Process, 103 Tex. L. Rev. 657 (2025).

[35] See [1]

[36] Brief for National Organization for Marriage and the Claremont Institute Center for Constitutional Jurisprudence as Amicus Curiae Supporting Petitioner, Davis v. Ermold, 141 S. Ct. 3 (2020) (No. 25-125).

[37] See [1]

[38] Waiver of the Respondents’ Right to File a Brief , Davis v. Ermold, 141 S. Ct. 3 (2020) (No. 25-125).

[39] Davis v. Ermold, 141 S. Ct. 3 (2020) (No. 25-125).

[40] Amy Howe, Will the Supreme Court revisit its ruling on same-sex marriage?, SCOTUSblog (Aug. 13, 2025), https://www.scotusblog.com/2025/08/will-the-supreme-court-revisit-its-ruling-on-same-sex-marriage/

[41] See [1]

[42] Denial of Writ of Certiorari, Davis v. Ermold, 141 S. Ct. 3 (2020) (No. 25-125).

[43] Obergefell v. Hodges, 576 U.S. 644 (2015) (Thomas, J., dissenting). 

[44] Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 3 (2022) (Thomas, J., concurring). 

[45] Obergefell v. Hodges, 576 U.S. 644, 101 (2015) (Alito, J., dissenting). 

[46] Justice Samuel A. Alito, Jr., Remarks at the C. Boyden Gray Center for the Study of the Administrative State (Oct. 3, 2025). 

[47] Lawrence Hurley, Justice Samuel Alito says he is not calling for same-sex marriage ruling to be overturned, NBC News (Oct. 3, 2025), https://www.nbcnews.com/politics/supreme-court/justice-samuel-alito-says-not-calling-sex-marriage-ruling-overturned-rcna235535

[48] See [18]

[49] Neil Gorsuch, The Future of Assisted Suicide and Euthanasia (2006).

[50] Pavan v. Smith, 582 U.S. 563, 137 S. Ct. 2075 (2017).

[51] Pavan v. Smith, 582 U.S. 563, 137 S. Ct. 2075 (2017) (Gorsuch, J., concurring). 

[52] Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022). (Kavanaugh, J., concurring).

[53] Justice Brett M. Kavanaugh, Remarks at 2017 Walter Berns Constitution Day Lecture (Sep. 18, 2017). 

[54]  Joel Dodge, Kavanaugh’s Confidential Emails Show He’s a Threat to Individual Liberty, American Constitution Society (Sep. 14, 2018), https://www.acslaw.org/expertforum/kavanaughs-confidential-emails-show-hes-a-threat-to-individual-liberty/

[55] Justice Brett M. Kavanaugh, Remarks at the Federal Courts, Practice & Procedure Symposium: Justice Scalia and the Federal Courts (Feb. 3, 2017). 

[56] Roll Call Vote No. 223, 115th Cong., 2d Sess. (Oct. 6, 2018), confirming Brett M. Kavanaugh, of Maryland, to be an Associate Justice of the Supreme Court of the United States, PN2259, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1152/vote_115_2_00223.htm

[57] Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Dissenting from the bench, SCOTUSblog (Jul. 2, 2013), https://www.scotusblog.com/2013/07/scotus-for-law-students-sponsored-by-bloomberg-law-dissenting-from-the-bench/#:~:text=These%20statistics%20are%20kept%20up,and%20Justice%20Ginsburg%20eight%20times.

[58] See [13] 

[59]  Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022) (Roberts, J., concurring). 

[60] June Medical Services L.L.C. v. Russo, 591 U.S. ___ (2020)  (Roberts, J., concurring).

[61] Amy C. Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711 (2012-2013).

[62] Amy C. Barrett, Listening to the Law: Reflections on the Court and Constitution (2025).

[63] Sonam Sheth, Amy Coney Barrett Says ‘Rights to Marry’ Are Different From Abortion, Newsweek (Sep. 2, 2025),  https://www.newsweek.com/amy-coney-barrett-abortion-supreme-court-decision-2123359

[64] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (Breyer, Sotomayor, and Kagan, JJ., dissenting).

[65] Aryn Fields, Human Rights Campaign Celebrates the Historic Confirmation of Ketanji Brown Jackson, the First Black Woman to Serve on the Supreme Court of the United States, Human Rights Campaign (Apr. 7, 2022), https://www.hrc.org/press-releases/human-rights-campaign-celebrates-the-historic-confirmation-of-ketanji-brown-jackson-the-first-black-woman-to-serve-on-the-supreme-court-of-the-united-states

[66] 303 Creative LLC v. Elenis, 600 US _ (2023)

[67] See [40]

[68] See [8]

[69] Tex. Penal Code Ann. § 21.06 (West 2015).

[70] H.B. 1738, 89 Leg., Reg. Sess. (Tx. 2025).

[71] Khaleda Rahman, Push for Supreme Court To Overturn Gay Marriage in Multiple States, Newsweek (Feb 26, 2025), https://www.newsweek.com/push-supreme-court-gay-marriage-states-2036390

[72] S.B. 1117, 101st Gen. Assemb., Reg. Sess. (Mo. 2022).

[73] H.B. 547, 89 Leg., Reg. Sess. (Tx. 2025).

[74] H.B. 0315,114th Gen. Assemb.., Reg. Sess. (Tn. 2025).

[75] Donald Trump (@realDonaldTrump), X (Jun. 26, 2015, 9:06 AM), https://x.com/realDonaldTrump/status/614434531861512193

[76] Republican Party, The 2016 Republican Party Platform (2016).

[77] The Heritage Foundation, Mandate for Leadership: The Conservative Promise (2023).

[78] Pete Hegseth (@PeteHegseth), X (Aug. 7, 2025, 8:18 PM), https://x.com/PeteHegseth/status/1953626931234054558