Lawmakers in at least nine states across the country want to undermine the right to marry for same-sex couples. 

Michigan Republicans have released a resolution to “condemn the Supreme Court of the United States’ decision in Obergefell v. Hodges,” which is a prominent court decision for many members of the queer community. 

Similar resolutions to Michigan’s have been introduced in other states including Idaho and North Dakota, which have now passed their resolutions. In addition, four states have introduced new bills that don’t specifically mention Obergefell, but create new marriage categories, strictly for heterosexual couples. 

Obergefell v. Hodges (2015) was a landmark case for the LGBTQ+ community because it ruled that the fundamental right to marry, even for queer couples, is guaranteed by virtue of two constitutional clauses: the equal protection clause and the due process clause.

The Due Process Clause is a provision of the Constitution, appearing in both the Fifth and 14th Amendment, which says that the government may not deprive people of their “life, liberty, or property, without due process of law…”

The Equal Protection Clause, also appearing in the 14th Amendment, says that all people should be treated equally under the law. This protects the people from being treated differently on the basis of race, gender, religion or other characteristics. 

These two clauses were used in the case to prove that denying same-sex couples marriage licenses is unconstitutional, and that all states must provide marriage licenses and recognize same-sex marriages. 

Specifically, in Michigan lawmakers document released Feb. 25, they have claimed that the current standing of same-sex marriage is a violation of the U.S. Constitution because the definition of “liberty,” as used in Obergefell, is not the same “liberty” that would be recognized by the framers of the constitution.

With this logic, the interpretation of the word “liberty” is an “inversion” of the word’s true meaning and, in the words of the resolution, “causes collateral damage to other aspects of our constitutional order that protect liberty, including religious liberty.”

The document appears to take an originalist approach to interpreting the Constitution, which is a theory that examines the framing documents as they were originally written. 

In this particular case, the Constitution did not specifically include these clauses for the purpose of protecting same-sex marriages. Therefore, originalists would believe that these clauses cannot be used to do so. 

The Michigan House of Representatives, via this resolution, has reaffirmed that marriage is a union between one man and one woman and has requested that the Supreme Court re-examine their 2015 decision. 

What does this mean?

In 2022, when ruling on Dobbs v. Jackson Women’s Health Organization, the Supreme Court simultaneously overturned Roe v. Wade, a case that had previously protected a woman’s right to choose abortion by virtue of the due process clause. 

Because the Constitution does not specifically mention the right to abortion, the due process clause cannot be applied to protect it. This is the same originalist approach that is brought about by the resolutions to object or overturn Obergefell. 

Like Roe v. Wade, if overturned, the right to recognize marriages between same-sex couples would be at the discretion of the state. 

When Roe v. Wade was overturned, Supreme Court Justice Clarence Thomas did suggest that court precedents, including Obergefell v. Hodges, should be reconsidered. 

The protections in Obergefell v. Hodges cannot be undermined by an executive order or federal law. They can only be overturned by the court, which may be unlikely unless a specific case regarding same-sex marriage is brought to the court. ​​Although the idea of this might be scary for many members of the queer community, the likelihood of this case being re-examined is not definite. 

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Ari Collins (she/they) is a first-year journalism student at Kent State with a special interest in politics and the power of young voices. She has previously written Op-Ed and editorial content regarding Ohio LGBTQ+ issues and wants to continue this effort to give perspective and encourage young voters to use their political power.