The campaign to overrule Obergefell

The landmark 2015 decision in *Obergefell v. Hodges*, which established a constitutional right to same-sex marriage, continues to face persistent challenges, primarily through claims of religious freedom. While the Supreme Court denied certiorari in *Davis v. Ermold* in 2020, a case involving a Kentucky county clerk who refused to issue marriage licenses to same-sex couples, the accompanying statements from Justices Thomas and Alito signaled a clear desire to revisit and potentially overturn *Obergefell*. This ongoing campaign is bolstered by the changing ideological composition of the Supreme Court following key judicial appointments. Practitioners must remain vigilant regarding the evolving legal landscape, as future cases may present a more direct opportunity for the Court to reconsider the precedent set by *Obergefell*.

The United States Supreme Court's decision in *Obergefell v. Hodges*, 576 U.S. 644 (2015), marked a pivotal moment in American jurisprudence, recognizing the fundamental right to marry for same-sex couples under the Fourteenth Amendment. This ruling brought marriage equality nationwide, yet it simultaneously ignited a sustained campaign by opponents seeking to undermine or outright overturn the decision. This campaign frequently leverages arguments rooted in religious freedom, asserting that the enforcement of same-sex marriage rights infringes upon sincerely held religious beliefs.

A significant recent development in this ongoing legal battle was the Supreme Court's denial of certiorari in *Davis v. Ermold* in 2020. Although the Court declined to hear the case, the accompanying statement from Justices Clarence Thomas and Samuel Alito, expressing a desire to revisit *Obergefell*, underscored the vulnerability of the precedent. This article examines the various facets of the campaign to overrule *Obergefell*, focusing on the legal arguments employed, the implications of recent Supreme Court decisions concerning religious liberty, and the impact of the Court's shifting ideological balance on the future of marriage equality.

Prior to *Obergefell v. Hodges*, the legal recognition of same-sex marriage varied significantly across U.S. states. The 2015 decision resolved this patchwork, holding that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment guarantee the right to marry for same-sex couples. Justice Anthony Kennedy, writing for the 5-4 majority, articulated that the right to marry is a fundamental liberty inherent in the person, and that same-sex couples could not be deprived of this right and liberty. The ruling effectively overturned *Baker v. Nelson*, 409 U.S. 810 (1972), which had previously dismissed a same-sex marriage challenge.

However, the *Obergefell* decision was met with strong dissents, particularly from Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. These dissenting justices raised concerns about judicial overreach, the lack of a textual basis for same-sex marriage in the Constitution, and the potential threat to religious liberty for individuals and institutions holding traditional views of marriage. This latter concern, the "religious conscience" argument, posits that requiring individuals or businesses to participate in or recognize same-sex marriages violates their First Amendment rights to the free exercise of religion. This tension between LGBTQ+ equality and religious freedom has since become a central battleground in the efforts to challenge *Obergefell*.

The campaign to overrule *Obergefell* gained significant attention with cases like *Davis v. Ermold*. Kim Davis, a county clerk in Kentucky, refused to issue marriage licenses to same-sex couples following the *Obergefell* decision, citing her deeply held religious beliefs. While the Supreme Court ultimately denied certiorari in *Davis v. Ermold* in 2020, allowing lower court rulings against Davis to stand, the denial was accompanied by a notable statement from Justice Thomas, joined by Justice Alito. In their statement, they asserted that *Obergefell* was wrongly decided, created a "novel constitutional right" that privileged over religious liberty, and had "ruinous consequences for religious liberty," suggesting the Court has a duty to "correct the error."

This sentiment is further illuminated by other religious freedom cases heard by the Court. In *Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission*, 584 U.S. 617 (2018), the Court issued a narrow ruling in favor of a baker who refused to create a wedding cake for a same-sex couple. While Justice Kennedy's majority opinion emphasized that gay persons cannot be treated as social outcasts, the decision found that the Colorado Civil Rights Commission had shown hostility toward the baker's religious beliefs, violating his First Amendment rights. Crucially, this ruling did not establish a broad license to discriminate based on religious objections.

More recently, *Fulton v. City of Philadelphia*, 593 U.S. 522 (2021), saw the Court unanimously rule that Philadelphia violated a Catholic foster care agency's First Amendment rights by refusing to renew its contract due to the agency's policy against certifying same-sex couples as foster parents. The decision was narrow, hinging on the city's contract allowing for discretionary exemptions, which subjected its actions to strict scrutiny. Justices Alito and Gorsuch, joined by Thomas, concurred in the judgment but advocated for a broader re-evaluation of *Employment Division v. Smith*, 494 U.S. 872 (1990), which generally holds that neutral laws of general applicability do not violate the Free Exercise Clause.

The retirement of Justice Anthony Kennedy in 2018, who was the swing vote in *Obergefell*, and subsequent appointments to the Court have significantly altered its ideological balance. This shift has fueled concerns among LGBTQ+ advocates about the stability of *Obergefell*, as a more conservative Court may be more receptive to arguments challenging its precedent. While the doctrine of *stare decisis*—the principle of adhering to precedent—is a significant hurdle to overturning established rulings, some justices have expressed a willingness to reconsider constitutional precedents they believe were wrongly decided.

The campaign to overrule *Obergefell v. Hodges* remains an active and evolving legal front, driven by a confluence of religious freedom arguments and a Supreme Court whose ideological composition has demonstrably shifted. While the denial of certiorari in *Davis v. Ermold* did not directly challenge *Obergefell*, the accompanying judicial statements serve as a potent reminder of the ongoing intent by some justices to reconsider the foundational right to same-sex marriage.

For legal practitioners, particularly those advising LGBTQ+ individuals, families, or religious organizations, continuous monitoring of Supreme Court jurisprudence and state-level legislative efforts is paramount. The narrow rulings in cases like *Masterpiece Cakeshop* and *Fulton* indicate a cautious approach by the Court to religious freedom claims, yet the underlying tension persists. Future litigation may present a "cleaner" vehicle for a direct challenge to *Obergefell*, making it imperative for attorneys to understand the historical context, the evolving legal arguments, and the potential implications of a judiciary increasingly willing to re-examine established constitutional rights.