Pod Insights Civics 101 Is same-sex marriage in legal peril? About this episode In 2015, the Supreme Court made marriage equality the law of the land. However, for the first time in over five years, Kim Davis (an opponent of same-sex marriage) petitioned for a writ of certiorari to overturn Obergefell. Is there a possibility the court will revisit its finding? How does this decision compare to other recently overturned decisions like Roe v Wade? And is even talking about this a problem in itself??
Talking us through the situation and possible scenarios is Danaya Wright, Professor in Constitutional Law at the University of Florida Levin College of Law.
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Transcript 5,402 words · 18 speakers
Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
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1:31 Speaker 08 Ten years after the Supreme Court ruled in favor of same-sex marriage across the United States, it could now be overturned. Senior Washington correspondent Devin Dwyer is on the story for us. All right, give us the deal, Devin. Who is actually asking the justices to overturn this?
1:50 Nick Capodice? You're listening to Civics 101. I'm Nick Capodice.
1:52 Hannah McCarthy? I'm Hannah McCarthy.
1:53 Nick Capodice? And today, we are talking about a Supreme Court case we have talked about before: the 2015 decision that made marriage marriage, Obergefell v. Hodges. We're going to go to Ari Melber right now. Ari, I would imagine people are running behind you at the Supreme Court steps.
2:08 Speaker 11 I'm speaking to you from the Supreme Court. We have Red from the bench. There is a right to marriage equality. I repeat, speaking to you from the steps of the Supreme Court, there is a right to marriage equality. Red, just from the bench now, waiting to get the opinions as they come running out of the court, Thomas.
2:25 Nick Capodice? And I wanted to talk about this case again, Hannah, because we've been here before.
2:32 Hannah McCarthy? How so?
2:33 Nick Capodice? Well, we have talked about a landmark Supreme Court decision in great detail, a famous right to privacy case, and then we saw that decision get overturned.
2:43 Speaker 12 Enraged abortion rights supporters say Dobbs robs women of a fundamental freedom.
2:49 Speaker 13 My body, my child.
2:51 Hannah McCarthy? You know, when I was making our Roe v. Wade episode four years ago, I was shocked when the guest, Mary Ziegler, said, "When Roe is overturned." And I say, "When," not "if." I'd never heard someone express that with such certainty. And about a year later, when the Dobbs decision came down, she was proven right.
3:14 Nick Capodice? Yeah.
3:15 Hannah McCarthy? But what does the overturning of Roe v. Wade have to do with Obergefell? Is marriage equality in a similar tenuous position?
3:24 Nick Capodice? Kind of. Maybe.
3:26 Speaker 13 Former Rowan County Clerk Kim Davis is asking the U.S. Supreme Court to overturn the landmark Obergefell marriage ruling. Davis made national headlines.
3:37 Nick Capodice? It feels like a strange thing to do right now, to say, "This right is in danger." Hannah, there's a part of me that fears just by saying marriage equality is in danger puts it in more danger. But there is a chance that marriage equality will be on the docket in the upcoming SCOTUS term. So Hannah, do you remember somebody named Kim Davis?
3:58 Hannah McCarthy? I do. She was a county clerk who refused to provide marriage licenses to same-sex couples, and she continued to deny those licenses after the ruling in Obergefell, and I believe she went to jail.
4:11 Nick Capodice? Yeah, she did. Five days in jail. And I'm going to get more into Kim Davis later. But long story short, lots of appeals, lots of losses in other court cases. But this July, 2025, for the first time in years, Davis filed a writ of certiorari with the U.S. Supreme Court.
4:29 Hannah McCarthy? Okay, so listeners who are not familiar with the case Obergefell v. Hodges really should listen to our episode on it. We had the privilege of speaking with the Jim Obergefell. And in order to make that easy for you, we are re-releasing that episode, so it will be right next to this one in our feed.
4:48 Hannah McCarthy? But before we look at Obergefell under this new, recent light, can we get a quick summary of the ruling?
4:55 Nick Capodice? Absolutely.
4:56 Speaker 14 OK, well, the finding of the court was really straightforward, which is that the right of same-sex couples to marry was a fundamental right protected by the due process clause of the Constitution.
5:09 Nick Capodice? This is Danae Wright. She's a professor of constitutional law at the University of Florida's Levin College of Law.
5:16 Speaker 14 But that is, there's a lot to unpack and a lot underlying that. So I think we can't talk about anything that's been happening with abortion, with Obergefell, without going back to 1885.
5:31 Hannah McCarthy? 1885?
5:33 Nick Capodice? Yes. Today's episode is really all about the due process clause in the Constitution. Hannah, you talked about this a lot in your episode on Lochner v. New York.
5:42 Hannah McCarthy? One of the anti-canon cases, the cases where people generally agree that the Supreme Court got wrong.
5:48 Nick Capodice? So wrong. So the due process clause is in the Constitution twice. It's in the Fifth Amendment and the Fourteenth Amendment. The text of the Fifth says that "no person shall be, quote, 'deprived of life, liberty, or property without due process of law,' end quote." And the Fourteenth amplifies that by saying, "No state shall deprive any one of those things without due process of law." Now, Lochner was decided in 1905, but Danae is talking about this whole 50-year period where this concept was brought up in the courts.
6:21 Speaker 14 Starting around 1885, going up to the 1930s, you had a really conservative Supreme Court. And that conservative Supreme Court was very unhappy with a lot of state and federal laws that were aimed at regulating businesses. And that Supreme Court believed in sort of laissez-faire capitalism, no interference, et cetera. And so they struck down a whole lot of laws in a lot of cases. On the grounds that the due process clause of the Constitution prohibited governments from interfering with economic rights.
7:00 Speaker 14 Nobody would get together and into civil society and agree to be governed by a government that was going to do something so egregious as interfere with your right to work for a dollar an hour or to work in unsafe mines and things like that.
7:19 Nick Capodice? And for decades, the court struck down laws that were pro-union, laws that regulated how much people should be paid, any laws that told companies how to treat their workers.
7:31 Hannah McCarthy? Okay, this is what's called laissez-faire constitutionalism, right? Just let the market take care of things. Don't let the government interfere with the economy. Unfair wages and hours will cease to exist because people won't work in places that treat them that poorly, et cetera.
7:47 Nick Capodice? Exactly. And the court justified this by citing the due process clause.
7:52 Speaker 14 Which is a really vague concept, right? Whether it means just process, just procedure, or does it actually mean the government has to have a good reason for doing what it's doing? And the idea of substantive due process is that the government has to have a good reason. It can't just be arbitrary and capricious when it makes decisions to pass laws that are going to affect people. So this period, from 1885 to 1935, with this very conservative court, that period, I mean, ultimately, the Supreme Court's decisions led to complete economic meltdown, right?
8:31 Speaker 14 They partly caused the depression and people losing their lives and their homes and, I mean, it was just an economic catastrophe. The fact that they would not let government intervene at all. They said, "Government can't do this." Struck down all these laws. And finally, you know, FDR comes in. We've got a big popular mandate. And the New Deal sort of ticks off.
8:57 Nick Capodice? So FDR wants to pass all these laws helping workers out. And he keeps running up against the Supreme Court decisions from the last half century that stop him. So, how can FDR get around the Supreme Court? How can the unstoppable force deal with the immovable object, Hannah?
9:15 Hannah McCarthy? By packing that court like a tennis sardines.
9:20 Nick Capodice? Exactly. Franklin Roosevelt said, "Look, I'm the president. Congress is on my side. The people are on my side. We're just gonna add six more justices to the Supreme Court."
9:32 Speaker 14 And so in 1935, the first Justice Roberts changes a vote and says, "Okay, we give. We give. We're not going to continue to strike down all of this economic legislation. We were wrong. You governments, all you state, federal government, go do whatever you want. Pass whatever laws you want in this area." So, the conservatives, you know, really kind of had to eat crow for that period. Because they had, in an activist way, made up this doctrine that economic rights were so fundamental. And they were protected by this vague due process clause. The governments, they were gonna strike down laws left and right.
10:15 Speaker 14 I think you can't understand where we are now with abortion, with contraception, with same-sex marriage, without understanding that history.
10:28 Nick Capodice? Now Roosevelt never packed the court, but he did appoint a few justices. And the court then begins to rule in a less Lochner-y way. And time marches on.
10:41 Speaker 14 So, fast forward 30 years later, tonight, to the 1960s. Now we've got a liberal court. Now we've got a whole bunch of laws outlawing contraception, outlawing interracial marriage, outlawing abortion, and these liberal justices want to strike those down. And they say, well, there's nothing in the Constitution that says you have a right to do these. So where are we going to find a good source, a good constitutional provision to protect this liberty interest of that people have? And they say, oh, the due process clause.
11:22 Nick Capodice? Just slapping the hood of that due process clause and saying, you can get a whole lot of rulings out of this, baby. But now, they're not decisions stopping the government from interfering with how you run your business. They're stopping the government from interfering with your business business.
11:41 Speaker 14 The whole idea here is that this is a very vulnerable ground, constitutional grounding for these rights. And you can imagine that when the court really came out with it and said, you know what? There's this thing called a right to privacy. And the word privacy doesn't exist in the Constitution, but we think we can kind of see it lurking around through, you know, First Amendment rights, the right to be free of search and seizures, all of these other things. And therefore, we're going to imagine, really, a right to privacy.
12:20 Hannah McCarthy? I have to wonder about the conservative justices here, seeing the very tool they had used turned essentially against them.
12:28 Nick Capodice? They were livid.
12:30 Speaker 14 You can imagine that the conservatives on the court went ballistic. They said, wait a minute, wait a minute, you made us...
12:40 Speaker 14 Stop, right? We had this threatened court packing plan. You accused us of being activist judges, which we were. And now you're going and doing the same thing on the left, on the liberal side.
12:54 Nick Capodice? Now, one of the first big cases to do this was another one we've talked about, Griswold v. Connecticut.
13:00 Hannah McCarthy? This is the case that said that laws prohibiting the sale of contraceptives were unconstitutional.
13:05 Nick Capodice? Yeah, so there were six opinions total in that decision. Four of the more liberal justices saying, yeah, this looks pretty clear to me. This due process clause says the government can't interfere with your life, et cetera.
13:19 Speaker 14 Two conservatives just saying, wait a minute, wait a minute, wait a minute. This is all going back to this substantive due process that we've all agreed that we're going to reject and we're not going to do this again. But low and behold, we're going to do it again. What has happened is that after Griswold, then after Roe, Loving versus Virginia, so interracial marriage bans were struck down, you gradually see these privacy rights, this idea of substantive due process, growing to include the right to live with whoever you want in your family, the right to same-sex sexual conduct, then eventually the right
14:02 Speaker 14 to decline medical treatment, the right to die, basically, and ultimately then the right to same-sex marriage. And they're all based on this due process, sort of reinvigorated substantive due process clause or idea that the Supreme Court made up.
14:24 Nick Capodice? All right. So that is how we get to Obergefell. But this episode is about it coming up potentially again. We're going to get to Kim Davis's recent petition and a whole bunch of ifs. What might we see if this is picked up by the court next term? But first, we've got to take a quick break.
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17:48 Hannah McCarthy? We're back. We're talking about a lot of possible, potential maybes today on Civics 101. Specifically that marriage equality could be brought before the Supreme Court. Again.
18:01 Nick Capodice? Again. Potentially.
18:03 Hannah McCarthy? Nick, can we do a recap of how cases get to the Supreme Court? How they are brought before the Supreme Court?
18:09 Nick Capodice? Sure thing. If you lose a court case, you can appeal your case to an appellate court. Now, which court exactly depends on your case and your state. But eventually, after appealing as high as you can, and if this is a situation where it's not about just guilt, like whether you did it or not, but if you feel the law you're guilty of is unjust or unconstitutional, you can petition for a writ of certiorari, which has a pronunciation that nobody seems to agree upon. But anyway, the court has to choose it then and say, "Yeah, we're going to talk about this, this term."
18:45 Hannah McCarthy? How many cert petitions are submitted each year?
18:48 Nick Capodice? About 8,000.
18:49 Hannah McCarthy? Wow.
18:49 Nick Capodice? Yeah, and they don't pick a lot of them. Here is Danae Wright again.
18:53 Speaker 14 Normally, the court will accept, like, they'll take 60 cases or so. Four justices have to agree to take the case. It only takes four. But of course, it takes five to have a majority opinion. So there are situations when four justices will accept a case because they think, "Oh, we're going to, we want to make a, we want to make a point." And then they don't have their fifth vote. And then sometimes they just say, "Oops." We, that was a bad idea to grant cert. We're going to just dismiss the case, which they have done. Or they go ahead and decide it, but, but then they don't. They sometimes end up with precedents they don't particularly like.
19:36 Speaker 14 But generally speaking, if there's a, a circuit split, so if the Courts of Appeals have not agreed, if they've come up with interpretations of federal laws or constitutional rights that disagree with one another, that's the kind of case the court likes to take. Or cases that are setting really important constitutional precedents because the Constitution is the, is the supreme law of the land. Those are the ones they, they try to pick. Ones that they think are going to have some impact.
20:10 Hannah McCarthy? And Kim Davis has filed one of those 8,000 cert petitions.
20:14 Nick Capodice? She has.
20:15 Hannah McCarthy? And what's her claim exactly?
20:17 Nick Capodice? It is a First Amendment free exercise of religion claim. As Rowan County Clerk in Kentucky, Kim Davis refused to issue marriage licenses to same-sex couples. And a court ordered her to, and she refused on religious grounds.
20:33 Speaker 14 And ultimately, she ended up serving time in prison and she ended up with large fines. She had to pay, I think, $100,000 in punitive damages for emotional distress to the couple for not doing her civic duty or what she was required to do by the law, under the law. Then she had to pay their attorney's fees. I mean, she suffered significantly from her, the position she took, which was that she argued her religious liberty interests allowed her to, justified her in not complying with this law and not granting marriage licenses. If Obergefell were overturned, then perhaps these, these judgments,
21:16 Speaker 14 these $360,000 worth of money judgments might be made to somehow go away.
21:25 Hannah McCarthy? Nick, do we know any of the potential ways the court could decide on this?
21:30 Nick Capodice? Yeah, Danae had a few ideas.
21:32 Speaker 14 Well, first off, I think we need to understand what would the court do with Obergefell? So they have different possibilities, right? One thing they could do is to say, you know what? All of that substantive due process is hogwash. We're going to throw it all out. We're going to throw out. Same-sex marriage, we're going to throw out right to die. We're going to throw out every contraception, every liberty interest based on substantive due process. I don't see them doing that. Right? I think that would be, that would be pretty, uh, pretty significant, although Justice Thomas, on every decision, he writes a dissent saying, "We need to revisit this. This is all illegitimate."
22:13 Speaker 14 So if that were to happen, a whole lot of privacy interests would fall. I don't think anybody really wants that to happen. Right? I really don't.
22:24 Nick Capodice? However, there's another route the court could take, and it's the route they took in the Dobbs decision, which overturned Roe v. Wade.
22:32 Speaker 14 Which is to say, "Well, you know, this is kind of a funky legal basis, a funky constitutional doctrine, but abortion is unique. Abortion is special. Abortion involves potential life. So we can kind of pull it out from under this privacy umbrella and treat it on its own. And we can do the same with same-sex marriage. We can say, you know what? Same-sex marriage historically was not permissible. It's not part of our history and tradition. Therefore, we can justifiably say we were wrong to extend the substantive liberty interest under due process to same-sex marriage, uh, because we shouldn't have.
23:17 Speaker 14 So somehow pull it out and get rid of it."
23:21 Hannah McCarthy? So if the court did decide, one way or another, to overturn Obergefell, how would that even happen? Because about a million Americans are in same-sex marriages. Could those unions be undone?
23:35 Nick Capodice? DeNia said that is pretty unlikely and very difficult to do.
23:40 Speaker 14 So are they going to now void all of the marriages for the last 15, 20 years that people have entered into? That would be huge if you think about the reliance interests, the economic interests, the number of children who are legitimate, right? I mean, all sorts of things that that, I think putting that genie back in the bottle is probably not going to happen. So then it would be a matter of, well, going forward, we're not going to do any more of these marriages. In which case... It could go back to a state by state level, but that's also a problem.
24:21 Speaker 14 That's a problem because marriage is portable. You know, if you get married in Iowa and you move to California, you don't have to get married again. It's it's not technically the full faith and credit provision of the Constitution that requires comity between states. But it it was a real issue for same sex couples prior to Obergefell. If you went from one state to another, you were married in this state, but now you're not married. Just the the technicality of dealing with that. It was a real pain in the neck.
24:58 Hannah McCarthy? OK, I have one more Supreme Court decision that feels kind of tied to this one, maybe closer than any of the others that we have mentioned. Loving v. Virginia.
25:08 Nick Capodice? Yes, OK, so this is the 1967 decision which struck down laws banning interracial marriage.
25:14 Hannah McCarthy? Did Loving also rely on the due process clause?
25:18 Nick Capodice? Yes, it did. But in addition, it also relied on the equal protection clause. This is from the 14th Amendment, and it says basically that states can't deny people in similar circumstances equal protection under the law.
25:33 Speaker 14 So when we talk about the difference between equal protection and due process, equal protection challenges come when the law classifies people into different groups and treats one group better than another group. Due process clause is when it the government action interferes with an individual's right to do something. And if it's a fundamental right, the government has to have a good reason for it. If it's just a non fundamental right, like what day my garbage is going to get picked up on, we don't care about that, right? We can infringe that. You want it on Monday? You're not going to get it on Monday. You're going to get it whatever day they decide to have garbage collection. So a due process analysis is always focused on the right at stake.
26:16 Speaker 14 Equal protection analysis is always focused on the classification that is being made between people that are being treated differently. So if we look at Loving, which was about interracial marriage, it was about the right to marry the person you want, which is a right, which is a due process issue. But it was also because it was limited on the basis of race. And it was treating one group differently than another on the basis of race. The court struck it down on equal protection grounds as well. Now, fast forward to Obergefell. Obergefell, the Kennedy opinion, is 95% due process. But he also throws in there
26:59 Speaker 14 that this is kind of an equal protection violation as well.
27:03 Speaker 15 The right of same-sex couples to marry is derived, too, from the equal protection clause. The court's cases touching upon the right to marry, as well as its cases addressing the legal treatment of gays and lesbians, have long emphasized the relation between liberty and equality.
27:17 Nick Capodice? And interestingly, Justice Sandra Day O'Connor wrote a concurring opinion to Justice Anthony Kennedy's decision. And she said, you know, I think the whole thing should be equal protection. Let's just leave due process out of it.
27:30 Speaker 14 So Obergefell and Loving are bookend cases. They both have the same dual justifications, dual constitutional theories going on in them. Whereas Roe did not, right? Whereas contraception does not. Those are pure, the right to die case, Cruzan, those are just about due process fundamental rights. And that's where the weak leg of the stool is, is this substantive due process.
28:02 Hannah McCarthy? If due process is the weak leg of the stool, has anyone considered just scrapping it when it comes to these civil liberties cases? Just stick to equal protection instead?
28:13 Nick Capodice? Yeah, that is a very good question. And the problem with doing that is that substantive due process is really, really popular.
28:23 Speaker 14 I don't think the Supreme Court or anybody really wants to get rid of substantive due process altogether. Because we all kind of like our privacy, whether we're conservative or liberal. We kind of like not having the state in our bedroom. So then it becomes a question of, well, which, which rights? Why, why are they picking on these rights? Why are they picking on these things? That's a little, I think it's a little harder to justify just picking on the rights you don't like and keeping the rights you do like when you are a Supreme Court Justice. So we all know they didn't like abortion. Okay, we got rid of that. They may get rid of same-sex marriage. Okay, but then what about the right to die?
29:08 Speaker 14 How are they going to feel about that one? Hard to say.
29:15 Nick Capodice? Last thing I want to talk about today, Hannah. Marriage isn't something that just happens and that's that. You know, it's not like an event that just whoop is a one-time thing. Marriage creates myriad legal and financial privileges. We're talking about taxes, children, insurance, inheritance, on and on. This is not a simple thing to undo.
29:36 Hannah McCarthy? So I'm thinking about Kim Davis, that clerk who argued that giving a marriage license to same-sex couples goes against her religion. And it kind of makes me think of Roe v. Wade, because there are accommodations in states where people have a right to an abortion wherein a medical provider who does not wish to assist in one can request an exemption. Could county clerks like Davis get the same thing?
29:59 Speaker 14 So I could see that. But I, one of the things that bothers me about this case is, or about this, that, that claim, the idea that, you know, we could say, well, Kim Davis doesn't have to give, give a, a marriage license because it violates her personal religious views, is everybody in the community is paying taxes. Gay people and straight people are all paying their taxes. And they're paying their taxes to fund a court system, to fund a police system, to fund all of these public services. And so for somebody to say, I'm taking...
30:41 Speaker 14 Public dollars as my salary, but I'm going to choose to only serve a portion of the public that I approve of. That strikes me as being very problematic. She doesn't have to be a state employee or a county employee. She can go get a job working at McDonald's. And then if she wants to not serve gay people, that's fine, assuming her employer allows that. But if she's taking taxpayer dollars for her salary, it seems like there should be some obligation to serve all of the people who are paying your salary.
31:19 Hannah McCarthy? I know we're not in the prediction game, but from what you've read about this, Nick, do you think it's likely the court will take this case up in the fall?
31:29 Nick Capodice? Well, I'm famously not good at making predictions, Hannah, but I want to restate something I said right at the top. So I think it is extremely important to keep watch on our rights. And we should all take note of the fact that Kim Davis did file for cert this year. But at the same time, that filing is in no way an indication that the court is interested in taking this up. And if I say over and over Obergefell is in danger, this could give an inaccurate feeling that it is, which weakens a right. And this is a right that is, for now, secure.
32:10 Nick Capodice? So that is what's up and what's not with Obergefell v. Hodges. This episode is made by me, Nick Capodice, with you, Hannah McCarthy. Thank you. Marina Henke is our producer, Christina Phillips, our senior producer, and Rebecca Lavoy, our executive producer. Music in this episode from Chris Zabriski and Epidemic Sound. Civics 101 is a production of NHBR, New Hampshire Public Radio.
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