The Supreme Court and Same-Sex Marriage: A Potential Reversal, the Case Against State Involvement, and Marriage as a Ritual

In 2015, the U.S. Supreme Court’s landmark decision in Obergefell v. Hodges legalized same-sex marriage nationwide, declaring that the right to marry is a fundamental liberty protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. However, recent shifts in the Court’s composition and ideological leanings have raised speculation about whether Obergefell could be revisited or even overturned.

Could the Supreme Court Strike Down Same-Sex Marriage?

The Supreme Court’s conservative majority, solidified in recent years with appointments under the Trump administration, has shown a willingness to revisit and overturn precedents, as seen in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade. This precedent raises questions about Obergefell’s vulnerability, especially as some justices have signaled skepticism about its legal foundation.

Potential Arguments for Overturning Obergefell

If the Court were to reconsider Obergefell, the arguments for striking it down would likely center on the following points:

1. Originalism and Textualism:

Conservative justices, such as Clarence Thomas and Samuel Alito, who dissented in Obergefell, argued that the Constitution does not explicitly address marriage, let alone same-sex marriage. An originalist or textualist approach might assert that the Fourteenth Amendment’s Due Process and Equal Protection Clauses were not intended to encompass a right to same-sex marriage when drafted in 1868. The Court could argue that Obergefell relied on an overly expansive interpretation of “liberty” and “equal protection,” imposing a modern social policy rather than adhering to the Constitution’s original meaning.

2. Federalism and State Autonomy:

Another argument could emphasize federalism, asserting that marriage laws should be left to the states. In their Obergefell dissents, Justices Thomas and Alito contended that the decision infringed on states’ rights to define marriage according to their citizens’ values. A future ruling could return marriage regulation to state legislatures, allowing states to ban or restrict same-sex marriage based on local laws or referenda.

3. Religious Liberty and Free Exercise:

The Court might frame a reversal as protecting religious liberty. Some justices could argue that Obergefell compels individuals or institutions with religious objections to same-sex marriage—such as bakers, florists, or religious organizations—to act against their beliefs. By overturning Obergefell, the Court could prioritize First Amendment free exercise protections over the right to marry, particularly in cases where religious convictions conflict with anti-discrimination laws.

4. Stare Decisis Under Scrutiny:

The Court’s willingness to overturn precedent in Dobbs suggests that stare decisis (the principle of adhering to prior rulings) is not sacrosanct. Justices might argue that Obergefell was “egregiously wrong” or has caused significant societal or legal conflict, justifying its reversal. For example, they could point to ongoing litigation over religious exemptions or parental rights as evidence of Obergefell’s destabilizing effects.

Likelihood and Context

A case challenging Obergefell would likely arise through a state law banning same-sex marriage, a religious liberty dispute, or a related issue reaching the federal courts. Justices Thomas and Alito have already signaled openness to revisiting Obergefell, as seen in their 2020 statement criticizing the decision’s impact on religious freedom. However, overturning Obergefell would face significant hurdles, including public opinion (polls show over 70% support for same-sex marriage in 2025) and the risk of political backlash. The Court might instead narrow Obergefell’s scope, allowing states greater leeway to impose restrictions without fully striking it down.

The Case Against State Involvement in Marriage

Beyond the same-sex marriage debate, a broader question looms: Should the state be involved in marriage at all? Critics across ideological spectrums argue that marriage, as a legal institution, has outlived its utility and creates more problems than it solves.

Historical Context of State Involvement

Historically, marriage was a private, often religious, institution governed by community norms. The state’s role emerged primarily to regulate property, inheritance, and social order. Today, marriage laws confer legal benefits—tax breaks, inheritance rights, healthcare access, and more—while also imposing obligations. However, these legal entanglements have led to unintended consequences, prompting calls to remove the state from marriage entirely.

Why the State Should Step Back

1. Neutrality and Fairness:

The state’s involvement in marriage inherently favors certain relationships over others, creating inequalities. For example, single individuals or those in non-traditional relationships (e.g., polyamorous or cohabiting partners) are excluded from tax benefits and legal protections granted to married couples. A state-neutral approach would treat all individuals equally, regardless of relationship status.

2. Bureaucratic Overreach:

Marriage laws entangle the state in personal decisions, from licensing requirements to divorce proceedings. This bureaucracy can be costly and inefficient, diverting resources from other priorities. Privatizing marriage would allow individuals to define their relationships through private contracts, tailored to their needs, without government oversight.

3. Cultural and Religious Conflicts:

State-defined marriage fuels cultural and religious disputes, as seen in debates over same-sex marriage and religious exemptions. Removing the state from marriage would allow communities to define marriage according to their values—whether religious, secular, or otherwise—without imposing a one-size-fits-all standard.

4. Reducing Legal Abuse:

Critics argue that marriage laws, particularly in divorce, are abused, often to the detriment of men. Family courts frequently award alimony or child support in ways perceived as unfair, with women statistically more likely to receive favorable rulings. By decoupling marriage from legal status, individuals could negotiate private agreements, reducing the potential for systemic bias or exploitation.

Tax Benefits as the Glue

The primary incentive for state-recognized marriage today is financial: joint tax filing, spousal Social Security benefits, and inheritance tax exemptions, among others. Without these benefits, many argue that marriage would revert to a private ritual, defined by personal or religious commitment rather than legal status. Critics contend that these benefits artificially incentivize marriage, distorting its purpose and encouraging relationships driven by financial gain rather than mutual commitment.

Marriage as a Ritual, Not a Legal Contract

If the state were removed from marriage, it could return to its roots as a cultural or religious ritual, free from legal entanglements. This shift would address concerns about fairness, abuse, and government overreach while preserving marriage’s symbolic importance.

Marriage as a Private Commitment

Marriage, at its core, is a personal vow between individuals, often rooted in love, tradition, or faith. As a ritual, it could be customized to reflect diverse beliefs—whether a religious ceremony, a secular celebration, or a simple exchange of vows. Private contracts could replace state-issued licenses, allowing couples to define their rights and obligations, from property division to healthcare proxies, without government involvement.

Addressing Perceived Abuses

The argument that marriage is “abused by women against men” stems from divorce statistics and cultural narratives. In the U.S., women initiate roughly 70% of divorces, and men are more likely to face financial burdens like alimony or loss of assets in family court. Critics argue that marriage laws incentivize exploitation, particularly when financial benefits are at stake. By making marriage a private ritual, couples could negotiate terms upfront, reducing the potential for one-sided legal outcomes. For example, prenuptial agreements could become the norm, ensuring clarity and mutual consent.

Challenges of a Ritual-Only Model

Transitioning to a ritual-only model would require dismantling complex legal frameworks, from tax codes to inheritance laws. Couples would need to proactively create private contracts, which could be burdensome for those without legal expertise. Additionally, societal acceptance of non-legal marriages might lag, particularly in communities where state recognition carries symbolic weight. However, these challenges could be mitigated through education and streamlined contract templates.

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