Ask The Lawyer By: Daniel A. Gwinn, Esq. – Are Same Sex Marriages in Jeopardy?

mage by Julie Rose from Pixabay 


QUESTION: I married my partner six years ago. My husband says that the Supreme Court’s draft opinion, overruling Roe v Wade, could lay the groundwork for overruling Obergefell v Hodges, the case that recognized the right of same-sex couples like us to marry. Should we be concerned?

ANSWER:     In December 2016, after President Trump was elected, we responded to a similar question with the assurance that even with a conservative majority on the Supreme Court, a reversal of the decision recognizing the right of same sex couples to marry was unlikely.

Now, we cannot offer that same assurance.

The leaked draft of the Supreme Court opinion overturning Roe v Wade appears to require proof that a claimed right existed at the time the Constitution, raises questions about the existence of a Constitutional right to privacy, and changes the factors the Supreme Court considers when deciding that its decision in an earlier case is no longer valid and must be overturned.

The case before the Court, Dobbs v Jackson Women’s Health, involves a Mississippi law that bans abortion over 15 weeks of “gestational age,” except in medical emergencies and in the case of severe fetal abnormality. Gestational age is defined as the number of weeks since the first day of a woman’s last menstrual period.

While there may be sound legal reasons for overturning Roe v Wade, a 1973 opinion that many of its proponents have declared flawed, the language used in the Dobbs draft opinion could weaken the underpinning of other decisions and allow other rights to vanish.

The biggest threat the draft opinion poses to marriage equality comes from a requirement that any right not explicitly contained in the Bill of Rights must be “objectively, deeply rooted in this Nation’s history and tradition” to be viewed as a fundamental right entitled to Constitutional protection.

Proponents of same-sex marriage, and of rights for LGBT people generally, see danger in this historical foundation requirement. For most of America’s history, sexual relations between two men was a crime punishable by death. The possibility of same-sex marriage was not even contemplated. (Lesbian relationships were, for the most part, not regarded as criminal offenses.) While the right to marry may be viewed as fundamental, the right of two people of the same sex to do so would lack the necessary historical basis.

A “historical basis” requirement disadvantages groups that had no voice in the 1700s. For much of our country’s, laws have been written by straight, white men — and necessarily reflected the views of that group.

The draft opinion also overrules a line of cases that found constitutional protection for a right to privacy. That right, according to one of the first cases in the line, was not found in a specific section of the Bill of Rights, but in the “penumbra” of these rights, and in the Ninth Amendment, which states that our rights may include those not enumerated in the Bill of Rights, but “retained by the people.”

In 1965, 1972 and 1977, the Court used this privacy right to strike down laws that forbade the use of contraceptives, first by married couples, then by unmarried couples, and finally struck down a law forbidding distribution of contraceptives to people under 16.

In 2003, Supreme Court relied on the right to privacy when it struck down a Texas law that made it a crime for two people of the same sex to engage in consensual sexual activity in the privacy of their home. The decision overruled Supreme Court precedent in a prior decision that, 20 years earlier, had upheld a similar law.

The draft opinion overturning Roe attacks the concept of a protected “privacy right,” finding no support for the existence of this right in the Constitution and very little in its previous line of decisions. If this right is struck own, it could open the door for state legislation that would make contraceptives unavailable, and criminalize sexual behavior or expression.

Alito’s draft would have the Court follow an altered list of the factors it considers when overruling its own precedent. Until recently, the Court looked first at whether a rule announced in a prior case was unworkable and whether overruling the rule would create a special hardship and be unfair to those who had relied on it. In the draft opinion, the “nature of the court’s error” in a prior decision, the quality of the legal reasoning and the workability of the rules imposed receive primary consideration. Reliance on a prior rule is ranked at the bottom of the list.

In the five years after the Supreme Court’s 2015 Obergefell decision, almost 300,000 gay and lesbian couples married, spending a collective total of about $3.2 billion on the celebrations of those unions, according to a 2020 report. With reliance on a prior decision no longer in the top spot when determining whether that decision should be reversed, it is not clear whether the undeniable reliance on Obergefell would be enough to counter a challenge that the decision lacked a historical foundation and was therefore poorly reasoned.

Justice Alito held out modest assurance to those who might reasonably fear that the Dobbs opinion would take down more than a right to abortion. He stated nothing in Dobbs “should be understood to cast doubt on precedents that do not concern abortion.” This one-paragraph disclaimer seems insufficient to undo the language in the remainder of the draft opinion that appears to put personal and private freedoms at risk.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]