Obergefell overturned?

My opinion piece in Monday’s Wall Street Journal offers eight reasons why, no matter who is the next justice, the Supreme Court will not overturn Obergefell v. Hodges, its 2015 same-sex marriage decision.

2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.

Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more. These effects would hit on day one because an earlier generation of social conservatives managed to write bans on same-sex marriage and equivalents into many state constitutions. Those bans would prevent elected officials from finding legal half-measures to avert massive dislocation for innocent persons.

The piece is paywalled, but Jonathan Adler has a write-up briefly summarizing some of its other points. I’ve discussed Pavan v. Smith here and Masterpiece Cakeshop here.


  • To overturn Obergefell would be completely lawless. The case itself was wrongly decided–but it has vested millions with deeply personal and intimate rights. Undoing that would upset settled relationships and activities. There is a limit to the judicial power.

  • If it ever does revisit Obergefell (how do people pronounce that?), I’d like it if the court at least gave the holding some more coherent grounding. Kennedy should’ve handed that opinion off to someone else in the majority, it would’ve prevented the dissents from having such valid points about the terrible reasoning.

    Anyway, Adler seems to summarize 3 or 4 points? Paywall leaves me wondering what the rest are.

  • I don’t expect the Supreme Court to hear a case that touches on Obergefell if they can possibly avoid it, and I don’t see a clear path for such a case making it to certiori. But Obergefell could be redone properly without dramatic legal difficulties. The ruling would just have to anticipate the problems & address them.
    Of course the case they heard would have allow them to do so – but a hypothetical framework could be:

    1) Marriage law is an issue for the States. States may stop issuing same sex marriage licenses if they wish.
    2) However, the Full Faith & Credit clause requires States to recognize marriages performed in other States.
    3) Marriages that were only allowed because of Obergefell were performed in a State where and when it was then legal and must continue to be recognized as such.

    There would be dramatic political upset of course, but nobody would have their marriages annulled. There would then be a flurry of activity in many States to repeal the Statutory & Constitutional restrictions on same sex marriage. It’s possible that could fail in a State or two but same sex couples could just get married in a nearby State.