Justice Thomas’s Call to Revisit Legacy Rights Looms Large as Marriage Equality Comes Under Fresh Threat
In 2022, during the Supreme Court’s seismic reversal of Roe v. Wade, Justice Clarence Thomas included a striking invitation in his concurring opinion: he urged the Court to rethink its foundational substantive due process precedents—including those establishing rights to contraception, same-sex relationships, and same-sex marriage. Now, that reexamination may be closer than ever. A renewed legal challenge, filed by Kim Davis—the Kentucky clerk jailed years ago for refusing to issue marriage licenses to same-sex couples—is pushing the Court to revisit and potentially overturn its landmark decision in Obergefell v. Hodges. The development brings Thomas’s long-standing perspective into sharp focus, raising alarms about the future of marriage equality.
A Justice’s Warning Rings Out Through the Decades
Thomas’s dissent in Obergefell, alone among his colleagues in 2015, made clear his discomfort with redefining marriage through judicial decree. In the majority opinion in that case, Justice Kennedy eloquently framed marriage as “a keystone of our social order”—noting that excluding same-sex couples imposed a grave inequality. But Thomas rejected that framework, maintaining that rights like marriage licenses should be decided by democratic majorities, not by the Court.
Fast forward to Dobbs, where Thomas not only supported overturning abortion rights—but urged reconsideration of Griswold, Lawrence, and Obergefell. He warned that substantive due process is unmoored from constitutional text and dangerous in its implications.
Now, with a petition before the Court asking it to reverse Obergefell, it appears his call may soon be heard in full. That would not only fulfill his long-stated judicial philosophy—but mark a pivotal shift in the trajectory of civil rights protections in the U.S.
Marriage Equality on the Chopping Block?
The new case comes from Kim Davis, the Kentucky official who refused to process same-sex marriage licenses back in 2015. She’s appealing a jury verdict that held her liable for damages. In her petition, Davis contends that Obergefell was wrongly decided and echoes Thomas’s reasoning—arguing that the decision rests on a flawed understanding of due process and oversteps democratic will.
If the Court agrees to hear the case—and especially if Thomas’s concurring call influences justices—the constitutional foundation of marriage equality could begin to crumble. This development comes as Congress’s 2022 Respect for Marriage Act remains in place, which recognizes valid same-sex marriages—but does not guarantee the right to marry should Obergefell fall.
What’s at Stake for Democracy and Rights
Thomas’s position, troubling to many, reveals a broader concern about judicial activism and the Court’s power to expand—or retract—fundamental rights not explicitly enumerated in the Constitution. Should the originalist bloc tip toward revisiting Obergefell, millions could lose not just a symbolic right—but tangible legal protections tied to marriage.
Advocates warn that the rollback of privacy-based precedents would undercut decades of civil rights progress. Justice Kagan and others cautioned in Dobbs that the same reasoning used to dismantle abortion rights could unravel other bedrock liberties.
A Society Poised on a Precipice
The renewed legal battle over same-sex marriage rights isn’t merely an isolated case—it mirrors an ideological struggle over how the Constitution should speak to modern society. If Obergefell is reversed, or even weakened, the right will fall back into political limbo, varying from state to state. That would usher in legal uncertainty and social upheaval, potentially relegating LGBTQ+ people to second-class status depending on geography.
Meanwhile, Congress’s backup protections may not be enough. Without Obergefell, litigation and political maneuvering could swamp access to marriage for hundreds of thousands. Thomas’s long-held desire to limit rights under substantive due process may soon shift from theoretical musings to real-world risk.
