Ten years after US Supreme Court's ‘Obergefell' judgment legalised same-sex marriage, an erosion of LGBTQIA+ rights

Indian Express

22-07-2025

Written by Kanav N Sahgal
June 26 marked the 10-year anniversary of Obergefell vs Hodges — the landmark US Supreme Court ruling that legalised same-sex marriage in the country. While some activists celebrated the anniversary, others decried how drastically the legal and political landscape has regressed for LGBTQIA+ people since that historic victory.
Backlash against the LGBTQIA+ community, especially transgender individuals, is on the rise across the United States. But more tellingly, the US Supreme Court's jurisprudence in the years since Obergefell has shifted sharply to the right — limiting rather than expanding LGBTQIA+ rights in a range of arenas: Education, public accommodation law and, more recently, healthcare access. During this time, the Court has also routinely upheld religious objections to LGBTQIA+ equality in four separate cases — most recently, just days ago, in the case of Mahmoud vs Taylor, where the Court ruled that parents have the right to opt their children out of public-school instruction involving LGBTQIA+-themed storybooks based on religious free exercise rights.
Two previous cases — one in 2018 (Masterpiece Cakeshop vs Colorado Civil Rights Commission) and another in 2023 (303 Creative LLC vs Elenis) — involved business owners who operated public accommodations and approached the Court seeking permission to deny same-sex couples' access to services. In both cases, the Supreme Court sided with the business owners, holding that enforcing anti-discrimination laws in these contexts would violate their First Amendment rights. In another case from 2021, Fulton vs City of Philadelphia, the Supreme Court unanimously ruled in favour of a Catholic foster care agency that refused to certify same-sex couples as foster parents. This list is not exhaustive — and does not even include the Court's recent rulings that have sharply curtailed legal protections for transgender people.
But why this shift? One obvious reason is that the composition of the US Supreme Court has changed drastically over the past decade. During his first term as president, Donald Trump appointed three conservative justices to the Court — Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — giving the nine-member bench a comfortable conservative supermajority. These three joined three other conservative-leaning justices already on the bench, forming a solid conservative bloc of six. This left only three Democratic appointees on the Court, unable to influence outcomes unless at least two conservative justices defected to their side.
Also, unlike in previous decades, it has now become increasingly rare to find justices who cross ideological lines or serve as moderating influences. In the past, several justices — though appointed by Republican presidents — maintained a degree of independence in their rulings. Take, for example, Justices Anthony Kennedy and Sandra Day O'Connor, both of whom, despite being Republican appointees, did at various times cast decisive swing votes in landmark LGBTQIA+ rights cases. Justice Kennedy famously authored the majority opinion in Obergefell and provided the crucial fifth vote that allowed the decision to take effect. Yet, just a few years later, he ruled against LGBTQIA+ plaintiffs in Masterpiece Cakeshop, authoring the majority opinion there as well. Similarly, Justice O'Connor cast the fifth and deciding vote in Bowers vs Hardwick (1986), a case that upheld laws criminalising sodomy. But in 2003, she joined the majority in Lawrence vs Texas, which overturned Bowers and effectively decriminalised consensual same-sex intimacy nationwide. It would be difficult, if not downright impossible, to imagine or expect the current crop of conservative justices to display that kind of openness to LGBTQIA+ issues today.
But a second, less frequently discussed reason for the weakening of jurisprudence on LGBTQIA+ rights in the United States comes from the Obergefell decision itself. While Obergefell legalised same-sex marriage nationwide, it also included a carveout that acknowledged the rights of individuals with 'decent and honourable religious or philosophical' objections to continue holding dissenting views on same-sex marriage. Ironically, this one sentence — arguably obiter dicta, and therefore not necessarily binding precedent — has since been repeatedly invoked by the Supreme Court's conservative majority again and again. In Mahmoud, for instance, the conservative bloc relied on Obergefell to explicitly justify parents' religious objections to LGBTQIA+ themed story books being read to their children. In a similar vein, the conservative bloc's resistance to substantive due process claims in the context of LGBTQIA+ rights has also intensified in recent times, most notably since the reversal of Roe vs Wade (1973) in Dobbs vs Jackson Women's Health Organisation (2022). There, in his concurring opinion, Justice Clarence Thomas explicitly called for the Court to reconsider Obergefell, suggesting rather unequivocally that if the logic employed in Dobbs were to be applied consistently, then the constitutional foundation for same-sex marriage may also fail to survive renewed judicial scrutiny.
Ten years after Obergefell, therefore, same-sex marriage remains a legal right — but the broader legal framework supporting it has been deeply eroded by the US Supreme Court, and there appears to be little hope for reversal in the near future.
The writer is a researcher at the Vidhi Centre for Legal Policy and visiting faculty at the National Law School of India University, Bengaluru