On June 26, 2015, a landmark U.S. Supreme Court ruling in the case of Obergefell v. Hodges officially legalized same-sex marriage across all fifty states, ushering in an era many would call progressive and headed toward equality. Yet in the years following, this decision was met with growing discontent— constituting a significant political movement challenging the legal precedent set by the Obergefell v. Hodges case. This manifested most recently in a popular bid to reexamine and potentially overturn the holdings of Obergefell, a bid which, at the time of writing, is currently being considered by the Supreme Court. In understanding the immense threat to civil liberties this bid, if accepted, represents, I find it necessary to examine the potentially catastrophic implications an overturning of Obergefell would constitute. In particular, regarding something as fundamental as the right to marry people of other races.
When the Supreme Court decided Loving v. Virginia in 1967, it struck down state bans on interracial marriage as violations of both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Court declared marriage to be “one of the basic civil rights of man,” fundamental to individual liberty and beyond the justifiable reach of ‘racial caste’ legislation [1]. Nearly half a century later, Obergefell v. Hodges extended this very same constitutional protection to same-sex couples, holding that the right to marry is fundamental and that excluding same-sex couples demeans their dignity and violates equal protection [2]. For decades, Loving stood as settled law, seemingly insulated by its moral clarity and historical distance. Yet recent developments pushing for the re-examination of Obergefell suggest that the legal theory and constitutional logic protecting Loving is not as protected as once assumed.
At the core of both the Loving and Obergefell decisions lies ‘substantive due process’: the principle that certain fundamental rights are protected from government interference even when not explicitly enumerated in the Constitution. In Loving, the Court held that Virginia’s anti-miscegenation statute violated this due process because it deprived individuals of the “freedom to marry” without sufficient justification [3]. Similarly, Obergefell relied on substantive due process to affirm that personal choices central to individual dignity and autonomy—including marriage—are protected liberties [4]. Although Obergefell also incorporated equal protection analysis, its reasoning explicitly and significantly drew upon these earlier substantive due process precedents, including Loving v. Virginia, as well as Griswold v. Connecticut, and Lawrence v. Texas [5].
This shared doctrinal foundation has become a major point of vulnerability in the post-Dobbs legal theory landscape. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court rejected substantive due process in the framework used in Roe v. Wade, holding that unenumerated rights must be “deeply rooted in this Nation’s history and tradition” to warrant constitutional protection [6]. While the majority opinion asserted that the ruling applied only to abortion, Justice Clarence Thomas’s concurring opinion explicitly called for reconsideration of all substantive due process precedents, naming Obergefell and Lawrence among them [7]. Notably, Loving was omitted from this list, but the analytical legal framework Thomas proposed certainly does not inherently exclude it.
The omission of Loving from Justice Thomas’s concurrence has often been interpreted as evidence of its security. However, this confidence rests more on political consensus, which is arbitrary and subject to rapid change, than on any firm legal doctrinal insulation. Under the Dobbs decision methodology, courts are instructed to evaluate rights based on historical practice at the time of the Fourteenth Amendment’s ratification in 1868. At that time, interracial marriage bans were widespread and legally entrenched across much of the United States [8]. Indeed, Loving itself explicitly rejected historical tradition as a justification for constitutional rights, emphasizing instead that the Constitution protects liberty against long-standing injustice [9]. If the Court were to apply Dobbs’s historical test consistently, Loving would struggle immensely to meet the “deeply rooted” standard it now demands.
The vulnerability of Loving thus emerges clearly, albeit indirectly, through legal challenges to Obergefell. Efforts to overturn or narrow Obergefell often frame same-sex marriage as a judicial invention lacking historical grounding. This critique mirrors arguments once used to defend anti-miscegenation laws, which claimed legitimacy through tradition and state authority [10]. By re-legitimizing history and tradition as primary constitutional arbitration, opponents of Obergefell risk reopening legal theoretical pathways that once justified racialized exclusion. As legal scholars have noted, the constitutional right to marry, as articulated in Loving, cannot be neatly separated from the broader substantive due process tradition without undermining its own reasoning [11].
Obergefell explicitly relies on Loving as precedent, describing it as part of a constitutional trajectory that expands liberty and equality over time [12]. If the Court were to repudiate this evolutionary understanding of rights—favoring a static historical test—it would not merely weaken Obergefell but call into question the very legitimacy of Loving’s interpretive approach. While political realities make an outright reversal of Loving unlikely, constitutional law is not purely governed by political popularity but by hard legal doctrine. As Dobbs clearly and shockingly demonstrated, long-standing precedents can fall when the Court redefines the rules of constitutional interpretation.
In this understanding, the threat to Loving is not necessarily immediate, but it is fundamentally structural. A Court willing to dismantle Obergefell on the grounds that substantive due process lacks historical legitimacy creates a jurisprudential environment in which Loving survives only by arbitrary exception, not legal principle. Such selective preservation risks hollowing out the Fourteenth Amendment’s promise that liberty and equality evolve to correct historical injustice.
Ultimately, the fate of Loving v. Virginia is bound to the constitutional reasoning that protects marriage as a fundamental right. If Obergefell falls, Loving remains standing not because it is doctrinally secure, but because the Court chooses—for now—not to apply its own logic consistently.
References:
[1] Loving v. Virginia, 388 U.S. 1 (1967).
[2] National Constitution Center. “Loving v. Virginia (1967).” National Constitution Center. https://constitutioncenter.org.
[3] Obergefell v. Hodges, 576 U.S. 644 (2015).
[4] Supreme Court of the United States. Obergefell v. Hodges, 576 U.S. 644 (2015). Majority opinion. https://www.supremecourt.gov.
[5] Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022).
[6] Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022). Majority opinion. https://www.supremecourt.gov.
[7] Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022). Thomas, J., concurring. https://www.supremecourt.gov.
[8] Franklin, Katie Eyer. “History and Tradition’s Equality Problem.” Yale Law Journal Forum 133 (2023). https://www.yalelawjournal.org/forum/history-and-traditions-equality-problem.
[9] Oyez. “Loving v. Virginia.” Oyez, IIT Chicago-Kent College of Law. https://www.oyez.org.
[10] Supreme Court of the United States. Obergefell v. Hodges, 576 U.S. 644 (2015). Discussion of autonomy and due process. https://www.supremecourt.gov
