Is same-sex marriage about to get the Dobbs treatment?

Could Obergefell v. Hodges, the landmark Supreme Court case that legalized same-sex marriage, face Roe v. Wade's fate?

Last month, Idaho lawmakers overwhelmingly passed House Joint Memorial 1, which declares that the Idaho legislature rejects the Supreme Court's ruling in Obergefell and formally asks the Supreme Court to "restore the natural definition of marriage, a union of one man and one woman."

The memorial accuses the Supreme Court of adopting a definition of "liberty" that the framers of the Constitution "would not have recognized." Whereas the framers declared in the Declaration of Independence that "all men are created equal" and "endowed by their Creator with certain unalienable Rights," the memorial accuses the Supreme Court of declaring in Obergefell that "citizens must seek dignity from the state." The memorial, moreover, accuses the Supreme Court of treating the Due Process Clause of the 14th Amendment "as a font of substantive rights," therefore "exalt[ing] judges at the expense of the people from whom they derive their authority."

Ultimately, the memorial demands the issue of marriage be returned to the "several states and the people."

What is most interesting about the memorial is that it was crafted to mirror the language of Supreme Court Justice Clarence Thomas.

The question seems not to be if the Supreme Court will hear a direct challenge to Obergefell — but when.

Case in point: In his forceful Obergefell dissent, Thomas condemned the "dangerous fiction of treating the Due Process Clause as a font of substantive rights" while warning that when strayed from the Constitution, "substantive due process exalts judges at the expense of the People from whom they derive their authority."

Thomas resurrected his argument seven years later when he wrote a concurring opinion in Dobbs v. Jackson Women's Health Organization, the landmark Supreme Court case that overturned Roe.

In light of the Dobbs ruling that abortion is not a form of "liberty" protected by substantive due process rights because it is neither "deeply rooted in this Nation’s history and tradition" nor "implicit in the concept of ordered liberty," Thomas argued that "all of this Court's substantive due process precedents" must be reconsidered, specifically highlighting Griswold v. Connecticut, Lawrence v. Texas, and Obergefell.

"Substantive due process ... has harmed our country in many ways," Thomas argued. "Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity."

That opportunity may come sooner than later.

While the Idaho memorial does not carry the force and effect of law, according to the Idaho Capitol Sun, it is a shot across the bow that signals a growing willingness to challenge Obergefell and the jurisprudence on which it stands.

The Supreme Court, however, will not revisit the legal question of same-sex marriage until it receives a direct challenge to the Obergefell precedent.

But it is not hard to imagine such a challenge emerging in the near future.

While the Obergefell decision legalized same-sex marriage in all 50 states, more than 30 states still have state constitutional amendments or statutes banning same-sex marriage. Democrats, concerned about a potential Obergefell reversal, warn that more than 200 million Americans live in states where same-sex marriage would become illegal if Obergefell falls.

Not only is there a legitimate argument that marriage is an issue of state's rights, but Thomas and Justice Samuel Alito have written on the consequences of the Obergefell decision for Christians.

After the Supreme Court chose not to hear a case involving Kim Davis — the Kentucky clerk who refused to issue same-sex marriage licenses because of her Christian faith — Thomas and Alito described Davis as "one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision" and warned that "she will not be the last."

"Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws," the duo wrote in 2020.

"It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law," they explained. "But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch."

In their eyes, the Supreme Court chose to "privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment" in Obergefell through "undemocratic" means.

The only remedy, according to Thomas and Alito, is future intervention from the Supreme Court.

Still, there are significant differences between abortion and same-sex marriage that would make overturning Obergefell insurmountable.

For example, support for same-sex marriage remains statistically high: About 70% of Americans support it, according to Gallup. Abortion never enjoyed such widespread support. Even more important is that reversing Obergefell would raise the complex legal question of what to do with existing same-sex marriages. Would they be invalidated? Grandfathered in?

Only the Supreme Court's nine justices can answer that question. But if Dobbs proved anything, it's that the Supreme Court is willing to overturn long-standing precedents to correct legal transgressions.

With growing cultural and political backlash against woke ideology, the question seems not to be if the Supreme Court will hear a direct challenge to Obergefell — but when.