For 10 years, I’ve said the best thing to come out of Obergefell v. Hodges is that it made our marriage unremarkable.
I don’t say that to devalue Obergefell, which guaranteed marriage rights to same-sex couples. I say it because I’m grateful it erased the differences between the Complimentary Spouse’s and my marriage and everyone else’s.
Before Obergefell, Britt and I had to contend with serious gaps in legal recognition at federal and state levels. We had to MacGyver solutions for situations other couples take for granted: hospital visitation, health care, power of attorney, inheritances, and so on. We didn’t know if these things would work. And we didn’t know when the next curveball would come our way.
Today, we have to contend with things like where to go to dinner and whose turn it is to empty the dishwasher.1
Unremarkable is good. Perhaps even a bit boring. That’s fine by me. It’s not like we’re aiming for dullness; we’re just relieved that the biggest issues we face day to day are the dull ones.
Will Obergefell Go the Way of Roe?
For a decade, Britt and I, like everyone else, have taken marriage equality for granted. But we can’t anymore. The groups wishing to undo Obergefell are emboldened by the conservative shift in politics, the Dobbs v. Jackson decision, and successful attacks on trans people.
I’ve got a bad feeling about this. And I’m not the only one.
“Ten years later, I certainly wasn’t expecting to be talking about the threats to marriage equality, the potential for Obergefell to be overturned,” plaintiff Jim Obergefell recently told NBC News.2
Our foes are using the same playbook that helped them successfully topple Roe. What looks like harmless pebble-throwing at Obergefell is really the start of a rockslide—fast, deliberate, and headed straight for the Supreme Court.
Already this year, lawmakers in several states introduced Resolutions urging the Supreme Court to overturn Obergefell.
Legally, these resolutions are meaningless—about as powerful as a letter to Santa. But symbolically, they’re a declaration of war.
When Idaho took up one of these resolutions earlier this year, Pride Foundation CEO Katie Carter told The Advocate that it “amounts to an amplified cultural attack against our community—and a foreshadowing of what’s to come for LGBTQ+ people across the United States.”
The resolutions and other small-scale actions energize critics and poison the public discourse. Groups like the Alliance Defending Freedom will take up the cause and guide it through myriad legal challenges on its way to the Supreme Court.
Andrew Koppelman, a professor of law and philosophy at Northwestern, told The New Yorker two years ago that Alliance Defending Freedom used to be considered an extreme fringe group with little credibility. That’s no longer true.3
“A.D.F. needs to be taken seriously, because any claim they make has a shot at five votes on the Supreme Court,” he said.
The New York Times reported that some Supreme Court justices, including Alito and Thomas, have already shown a willingness to undo Obergefell.
According to The New York Times:
After the court dismantled Roe v. Wade in 2022, eliminating a nearly 50-year constitutional right to an abortion, Justice Clarence Thomas, in his concurring opinion, said the court should use that case’s logic to reconsider decisions on same-sex marriage and contraception rights.
“Should Gay Couples Worry About Their Benefits Under Trump?” The New York Times, November 21, 2024
The Potential for Widespread Impact and Immeasurable Harm.
The Census Bureau counted 710,000 married same-sex couples in 2021. Overturning Obergefell would jeopardize marriage equality for about 60% of them, according to the Movement Advancement Project. That’s because those couples live in states with anti-marriage-equality laws on the books. Obergefell is the only bulwark against those laws being enforced.
Here’s the MAP map4 of those states.
The Respect for Marriage Act, passed in 2022, would preserve some of Obergefell’s protections if the decision is overturned—but not all of them. It would allow states to stop issuing marriage licenses to same-sex couples, but they would still have to recognize marriages performed elsewhere. The federal government would continue to recognize same-sex marriages.
There’s more to be done. Dobbs showed us that decades of precedent are worthless to today’s Supreme Court. The onslaught of anti-trans legislation and policies—including last week’s catastrophic United States v. Skrmetti decision at the Supreme Court—is the precursor for a larger onslaught on LGBTQ rights and liberties from all branches of government.
Obergefell Didn’t Make Marriage Boring. It Freed Us Up to Worry About Boring Things.
On Maslow’s Marriage Hierarchy of Needs, something I just made up, Obergefell let same-sex marriages jump from base physiological and safety needs to higher levels of love, esteem, and self-actualization.
Before Obergefell, I felt like the rug could have been pulled out from under same-sex couples at any time. All married couples have to deal with things like healthcare, legal issues, and financial security, but the burden was heavier for same-sex couples. I’m not just talking about time and money. Feeling uncertain and defenseless about your marital status takes an emotional toll.
When you’re no longer worried about the rug getting yanked from under you, you can focus on where the rug should go. Under the coffee table? Closer to the sofa? Maybe we need a new rug? Why not just redecorate the whole living room?5
Just another ordinary conversation in a typical marriage.
And that’s exactly the point.
Same-sex marriage should be unremarkable. Our defense of it shouldn’t be.
The Unremarkable Footnotes
- It’s Britt’s turn. ↩︎
- It must be weird to talk about a Supreme Court decision that’s named after you. ↩︎
- If I took every CVS receipt I’ve ever received and taped them end to end, it wouldn’t be nearly as long as the list of things considered too extreme 10 years ago to have been taken seriously but are now totally fucking up America. ↩︎
- If you printed this on a baseball hat and dozed off, it would be your MAP map nap cap. ↩︎
- Answers: Yes. No. No. Yes, but not now. We need to redo the bedroom first. ↩︎