Defining, Not Creating: The Constitutional Foundation of Same-Sex Marriage

Since the landmark 2015 decision in Obergefell v. Hodges, an estimated 900,000 same-sex couples have been married in the United States, reshaping both law and public life. [1] The ruling declared that the freedom to marry is a fundamental right guaranteed by the Fourteenth Amendment, a conclusion celebrated as long overdue by some and commended a judicial overreach by others. [2] The Constitution, like the nation it governs, is not static. Its interpretation evolves as courts and citizens revisit what liberty and equality require in changing times.

Nearly a decade after Obergefell, Ermold v. Davis (2025) now tests whether that evolution reflects genuine constitutional principle or an act of judicial creation. Kim Davis’s petition insists that Obergefell “read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text,” insisting that courts must not “legislate from the bench.” [3] But Davis’s framing relies on a false dichotomy. Constitutional interpretation and judicial invention are not the same, and conflating them reduces the Court’s role to something unrecognizable. Properly understood, Obergefell, did not create a new social order—it articulated the constitutional meaning of marriage within a longstanding framework of liberty rooted in both the Due Process and Equal Protection Clauses. It was an act of interpretation—not of invention.

Marriage has never been explicitly named in the Constitution, yet as early as Loving v. Virginia (1967), the Court affirmed it as one of the “vital personal rights essential to the orderly pursuit of happiness.” [4] In Loving, the Court struck down Virginia’s ban of interracial marriage, holding that the state could not “deny this fundamental freedom to marry on so unsupportable a basis as the racial classifications.” [5] The decision rested squarely on both the Equal Protection and Due Process Clauses—precisely the same constitutional pillars later invoked in Obergefell. The symmetry is not a coincidence. In Loving, historical custom could not justify exclusion from a fundamental right; in Obergefell, the Court reached the same constitutional conclusion.

Before Loving, cases such as Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) embedded family life, education, and intimate choices within the Fourteenth Amendment’s concept of liberty. The Court explained that liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in common occupations… and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness.” [6] While these rulings drew on broad understandings of liberty, they were not untethered from constitutional text; instead they interpreted the Due Process Clause’s protection of personal autonomy. Later decisions, including Griswold v. Connecticut (1965) and Eisentadt v. Baird (1972), made explicit what had been implicit: decisions involving marriage, intimacy, and family are central to individual identity and therefore protected by the Due Process Clause. [7, 8]

It is from this doctrinal lineage that Obergefell emerged—not from judicial innovation, but from continuity. Justice Kennedy emphasized that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy,” and that same-sex couples “seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.” [9, 10] The decision did not redefine marriage: it recognized that the liberty to choose one’s partner had always been embedded in marriage’s constitutional meaning.

The Court’s cases continue to confirm this interpretation. In Turner v. Safley (1987), the Court held that incarcerated individuals retain the fundamental right to marry, making clear that marriage does not depend on procreation or on the approval of the majority. The Court explained that marriage is rooted in “expression, intimacy, and spirituality,” qualities that “support a two-person union unlike any other in its importance.” [11] Similarly, Zablocki v. Redhail (1978) invalidated a Wisconsin statute restricting marriage for individuals with outstanding child-support obligations. Justice Marshall wrote that “the right to marry is part of the fundamental right of privacy implicit in the Fourteenth Amendment's Due Process Clause,” a line that squarely situated marriage as an essential liberty interest. [12] These cases establish that marriage is a domain of self-definition, not state permission—an understanding Obergefell merely extended to those previously denied it.

Critics like Davis and Justice Thomas argue that such extensions amount to abandoning judicial restraint, replacing democratic will with judicial sentiment. But restraint does not require paralysis. As Justice Harlan wrote in dissent in Cohens v. Virginia (1821), the Constitution “is framed for ages to come, and is designed to approach immortality as nearly as human institutions can.” [13] Judicial restraint demands discipline in reasoning, not blind deference to past exclusions. Obergefell meets this standard because it draws its logic from precedent, not from moral innovation.

The Court’s responsibility to interpret fundamental rights (even those unenumerated) has been reaffirmed in every generation. In Planned Parenthood v. Casey (1993), the joint opinion reiterated that “neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty.” [14] The same reasoning underlies Lawrence v. Texas (2003), which struck down sodomy laws criminalizing same-sex intimacy. Justice Kennedy, again writing for the court, held that the state cannot demean the existence of homosexual persons by making their private relationships criminal. [15] That decision’s core, that moral disapproval cannot justify deprivation of liberty, is the jurisprudential bridge between Loving and Obergefell.

To demand that liberty mirror the past is to negate the very principle that liberty evolves as understanding deepens. As the Obergefell majority put it, “the generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions.” [16] Judicial restraint cannot require ignoring that insight; fidelity to the Constitution requires embracing it.

Even Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade (1973), reinforces this distinction. Dobbs criticized Roe for lacking constitutional grounding and for inventing a right nowhere in the “text, history, or precedent” of the nation. [17] But Dobbs does not destabilize Obergefell, because the right to marry rests on decades of marriage-specific jurisprudence beginning with Loving, not on the privacy framework of Roe. Even under the imperative method Dobbs endorses, marriage equality remains consistent with the historical approach of the Court.

The Ermold petition invokes religious liberty, claiming Obergefell “threaten[s] the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.” [18] But this misreads the decision. Obergefell explicitly preserved the First Amendment’s protection of belief, stating that “those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling

and so central to their lives and faiths” [19] The ruling did not compel any church to perform or recognize same-sex marriages: it compelled the state, as a secular actor, to treat all citizens equally. Kim Davis’s refusal to issue marriage licenses was not an act of private conscience but an exercise of state power, therefore subject to constitutional constraints. The First Amendment shields her beliefs, but not her authority to deny another’s rights under color of law.

To overturn Obergefell today would not restore judicial neutrality, it would redefine it. The doctrine of stare decisis, though not absolute, exists to prevent constitutional rights from rising and falling with political tides. Roe v. Wade was overturned because the Court found that it had extended the Constitution beyond its text and history, creating a policy judgement better suited for legislatures. But Obergefell is different. It rests not on implied privacy or social policy, but on established jurisprudence of liberty and equality articulated in Loving v. Virginia, Zablocki v. Redhail, and Lawrence v. Texas. It did not invent a new right; it applied existing ones consistently. [20]

Obergefell has also been reinforced through democratic means; Congress’ passage of the Respect for Marriage Act in 2022, which codified federal recognition of same-sex marriages, proves that the decision’s principles have moved beyond judicial declaration into legislative consensus. That statute passed only because a broad, bipartisan coalition concluded that marriage equality reflected the settled expectations of the American public. Legislative entrenchment of a constitutional principle indicates that it is not merely tolerated but embraced by the electorate whose representatives enacted it. That evolution strengthens, rather than weakens its constitutional legitimacy. The question in Ermold is therefore not whether same-sex marriage should exist, but whether a right so rooted in precedent and public acceptance can be undone without undermining the very credibility of constitutional adjudication. Reversal would not correct judicial error; it would signal that rights depend on politics, not principle.

The Court has a duty to correct its mistakes when constitutional reasoning has truly gone astray. That duty justified reconsideration of Roe, where the line between interpretation and legislation had blurred. But in Obergefell, there is no such overreach to correct. The decision fits within the established bounds of judicial interpretation, applying existing definitions of liberty to those long excluded from its protection. Overturning it would not restore judicial modesty, it would erode the Court’s own commitment to consistency.

The role of the Court is not to protect tradition for its own sake, but to apply the Constitution faithfully when tradition denies equality. Obergefell fulfilled that duty. The Constitution changes only when interpretation demands it, and here, interpretation demands inclusion. The Court should recognize that the principles at stake are liberty, equality and dignity. These are not new rights but old promises finally kept. 

Edited by Liam Dreyer and Ashley Park

[1] Williams Institute, “Same-Sex Marriage in the United States: Estimates and Data,” UCLA School of Law, accessed December 2025, https://williamsinstitute.law.ucla.edu/press/ss-marriage-data-media-alert/.

[2] Obergefell v. Hodges, 576 U. S. 644 (2015)

[3] Petition for Writ of Certiorari, Davis v. Ermold,, No. 20-12 (U.S. Jan. 22, 2020), at 1.

[4] Loving v. Virginia, 388 U. S. 1 (1967), at 12.

[5] Loving v. Virginia, 388 U. S. 1 (1967), at 12.

[6] Meyer v. Nebraska, 262 U. S. 390 (1923), at 399.

[7] Griswold v. Connecticut, 381 U. S. 479 (1965).

[8] Eisenstadt v. Baird, 405 U. S. 438 (1972).

[9] Obergefell v. Hodges, 576 U. S. 644 (2015), at 12.

[10] Obergefell v. Hodges, 576 U. S. 644 (2015), at 6.

[11] Obergefell v. Hodges, 576 U. S. 644 (2015), at 13.

[12] Zablocki v. Redhail, 434 U. S. 374 (1978), at 384.

[13] Cohens v. Virginia, 6 Wheat. 264 (1821), at 387.

[14] Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), at 848.

[15] Lawrence v. Texas, 539 U. S. 558 (2003).

[16] Obergefell v. Hodges, 576 U. S. 644 (2015), at 11.

[17] Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215 (2022), at 45.

[18] Petition for Writ of Certiorari, Davis v. Ermold,, No. 20-12 (U.S. Jan. 22, 2020), at 2.

[19] Obergefell v. Hodges, 576 U. S. 644 (2015), at 5.

[20] Obergefell v. Hodges, 576 U. S. 644 (2015).