Don’t be surprised when Obergefell v. Hodges is next to fall.
When the U.S. Supreme Court overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) last summer, it offered two primary justifications for its decision to revoke the 50-year-old right to abortion. In his majority opinion in Dobbs v. Jackson Women’s Health Organization (2022), Justice Samuel Alito explained that, in his view, the right to abortion is not “deeply rooted in this Nation’s history and traditions” and therefore cannot enjoy constitutional protection. Justice Alito then offered a second argument in his effort to prove the illegitimacy of Roe and Casey: not only is the right to abortion ahistorical, but its recognition was also undemocratic. By recognizing a right to abortion, he writes, the Supreme Court “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” He went further, declaring that by recognizing a right to abortion, the Court “short-circuited the democratic process” and that such an “error…cannot be allowed to stand.”
After listing his reasons for removing federal protection of the right to abortion, Justice Alito went to great lengths to assure the public that overruling Roe and Casey would not imperil other fundamental rights of heart and home, particularly the right to same-sex marriage recognized in Obergefell v. Hodges (2015). As he stated, the right to same-sex marriage is “inherently different from the right to abortion because the latter…uniquely involves…‘potential life.’” Further, he noted that the right to same-sex marriage does not “involve the critical moral question posed by abortion.”
This attempted distinction between the right to abortion and the right to same-sex marriage provides little comfort. The methodology deployed to overrule the right to abortion can easily be translated into a decision overruling Obergefell. Just like the right to abortion, the right to same-sex marriage does not enjoy a firm foundation in our nation’s history and tradition, and its recognition by the U.S. Supreme Court halted democratic deliberations over whether to permit or prohibit same-sex marriage. Moreover, the Court’s Republican-appointed justices’ opposition to the right to marriage equality mirrors their objection to the right to abortion. All four dissenters in Obergefell — three of whom still sit on the Court — characterized the right to same-sex marriage as unsupported by history and as an infringement on the democratic process.
Understanding this connection, several justices have revealed their appetite for revoking the right to same-sex marriage. For example, in 2020, Justice Alito himself joined a statement describing the Court’s decision in Obergefell as one in need of “fix[ing].” In his concurrence in Dobbs, Justice Thomas implored the Court in his concurring opinion to “reconsider” and “overrul[e]” Obergefell.
Recent developments in Oklahoma’s legal landscape illuminate the rejuvenated assault on marriage equality. On Feb. 13, Oklahoma County District Court Judge Lynne McGuire revoked the parental rights of a woman on account of her marriage to another woman. Kris Williams and Rebekah Wilson were married when Wilson gave birth to a son via artificial insemination. Despite Williams’ marriage to Wilson at the time her son was born, in the couple’s divorce proceedings Judge McGuire revoked Williams’ parental rights and recognized Wilson and the couple’s sperm donor as the child’s legal parents. Had Williams been a man married to Wilson in an opposite-sex marriage, her legal parentage would be automatically presumed under Oklahoma law. Similarly, had Williams been a man married to Wilson in an opposite-sex marriage, she would not have to formally adopt her son to enjoy parental rights, as Judge McGuire faulted her for not doing. This disparate treatment of same-sex couples obviously violates Obergefell and subsequent decisions affirming marriage equality. Nevertheless, Judge McGuire chose not to apply these precedents to Williams’ marriage, and Williams lost custody of her son as a result.
The Oklahoma Supreme Court’s recent abortion decision also reveals the precarious future of marriage equality. In dissenting from the Court’s recognition that Oklahomans have a right to life-preserving abortion under the state constitution, Chief Justice John Kane explicitly links the democratic argument used to overrule Roe and Casey with the right recognized in Obergefell. He explained that “[t]his Court should adhere to the Constitution given to us, not craft what we believe to be a ‘better’ Constitution. That power lies with the people.” He then cites Justice Thomas’ dissenting opinion in Obergefell, writing that when judges “stray from the text of the Constitution,” they “exalt [themselves] at the expense of the People.” Vice Chief Justice Dustin Rowe offered similar arguments in his dissenting opinion, lamenting that “rather than allowing the democratic process to play out” the Court had “imposed its own policy preferences upon the People of our State.” This argument, as Chief Justice Kane’s dissent exemplifies, can be applied with equal force to Obergefell.
Williams intends to appeal Judge McGuire’s order stripping her of her parental rights, and her case is likely to reach the Oklahoma Supreme Court. This appeal provides a prime test case for the Oklahoma Supreme Court to undermine marriage equality across the state, and it could likewise offer the U.S. Supreme Court an avenue through which to do the same across the nation. If 50 years of precedent could not save Roe, then eight years of precedent will not save Obergefell. All that matters is whether these courts consider the right to same-sex marriage ahistorical and undemocratic. We already know they do.
