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The Threat to Same-Sex Marriage in a Post-Roe World

Published Tuesday, Jul. 5th, 2022

Update on the Supreme Court’s decision to overturn Roe v Wade and what it might mean for the future of Obergefell v. Hodges, same-sex marriage, and other rights.

Just over a week ago, the Supreme Court ignored decades of legal precedent and overtuned Roe v. Wade – the 1973 ruling that protected a pregnant person’s right to safe, accessible, and private abortion.

This is a big step backwards for reproductive rights and threatens the lives and well-being of millions of Americans. Unfortunately, the ramifications don’t stop at abortion – also at risk now are federal protections for same-sex couples to marry and other rights that relied on the legal precendent established by Roe.

Justice Clarence Thomas suggested on Friday following the Court’s ruling that federal protections for same-sex marriage, contraception access, and privacy in the bedroom should be reconsidered in light of Roe’s undoing. Many conservative politicians agree with him.

These protections, like those established by Roe, depend on the Court’s interpretation of the Due Process Clause of the U.S. Constitution's Fourteenth Amendment, which guarantees that a state cannot “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Specifically, that the right to privacy, to determine one’s medical and reproductive needs, and the right to marry are essential to life and liberty, and as such are protected equally under the Constitution.

The relevant Supreme Court cases mentioned by Justice Thomas are Obergefell v. Hodges, Griswold v. Connecticut, and Lawrence v. Texas. He could have also easily mentioned Perez v. Sharp or Loving v. Virginia, which established protections for interracial marriage, citing the Due Process Clause.

By tossing out Roe, the Court suggests that the Fourteenth Amendment will no longer protect these basic human rights, leaving them up to the lawmakers of individual states.

Many equality advocates, including AMM, are concerned that marriage rights will be the next to go.

What happens if Obergefell v. Hodges is overturned?

Could Obergefell v. Hodges be overturned by the Supreme Court? This might seem impossible to imagine, but the risk is real. In late 2020, Justices Clarence Thomas and Samuel Alito argued that discrimination against LGBTQ+ Americans should be treated as a religious freedom, and that they would “fix” the problem created by Obergefell if they were given the chance. With Roe overturned, their legal path through the Court is much clearer.

If Obergefell is overturned, there will be no federal protection for same-sex marriage. Each state would be free to pass its own laws defining legal marriage and rights of same-sex and other LGBTQ+ couples to marry, including creating bans against these marriages. Any existing bans that have not been removed from state laws could again become active and enforceable.

A handful of states have codified protections for same-sex marriage in recent years, including New Jersey and Nevada, by removing defunct bans or by creating gender-neutral marriage laws. However, almost half of U.S. states still have outdated bans on the books.

What’s next?

In May, we wrote in detail about the implications of overturning Roe v Wade. We also offered a path forward for our ministers who feel overwhelmed or hopeless in light of this continuing attack on basic rights. We’re sharing it again now in an effort to provide comfort and guidance.

What can you do to protect the rights of people in your community?

Writing legislators, protesting, and sharing information are all necessary actions of change, but we believe that your role as an AMM Minister places you in a unique position to do more.

We believe that our ministers have the power to be an overwhelming source of love and acceptance in their communities, and to lead by consistent and conscientious example.

Our commitment to equality insists that we see ourselves in every person we meet, whether it be the pregnant woman facing a life-altering decision, or the gay man seeking to marry his partner in the face of discrimination, and in every other living being that shares the miraculous light of consciousness through which this world experiences itself.

By being proudly inclusive, by offering ministry and marriage services to couples and their families without judgment, by meeting people on their own terms, and by lovingly serving those who might otherwise be discriminated against because of their race, gender, or sexual orientation, our ministers are a daily force for good in the world.

In this way, we aren’t urging you to do anything per se, but rather, we ask you to take a moment for quiet reflection where you listen to that part of you that transcends your body, your thinking mind, and your ego.

Hear that voice, and listen to its quiet, yet powerful directive. That’s your mandate, that’s your guide, and that’s the path along which you will find love and freedom.

And we believe that this type of loving presence and intentional action is more valuable, and more necessary, than ever.

About American Marriage Ministries

We are a non-profit, interfaith and non-denominational constitutional church that is federally recognized by the IRS as a 501(c)3 Public Charitable Organization.

Drawing on the freedom of religion clause in the United States Constitution, AMM provides free ordination, advocacy, and training for our ministers to ensure that all people have the right to get married and to perform marriage.

To date, we have ordained nearly 941,000 ministers who have officiated weddings all across the United States.

Learn more about American Marriage Ministries and our philosophy on marriage by visiting About Us.

Get ordained with AMM here.