Rep. Martin LaLonde

Rep. Martin LaLonde (D, district 7-1)

In 2000, Vermont was the first state to enact legislation recognizing civil unions. In 2009, it was the first state to legalize same-sex marriage through legislation. The Marriage Equality Act was passed with an override of the governor’s veto.

Shortly afterwards, same-sex couples in Michigan, Kentucky, Ohio and Tennessee sued state officials, challenging laws defining marriage as a union between one man and one woman. In 2015, the Supreme Court reviewed those cases and issued an opinion under the name Obergefell v. Hodges. It held that the 14th Amendment requires states to provide licenses for marriages between same-sex couples and recognize the marriages of same-sex couples that were lawfully licensed and performed out of state.

In June 2022, the majority opinion in Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade and Planned Parenthood of Southwestern Pa. v. Casey. Both of those cases were rooted in the same constitutional ground as Obergefell, the 14th Amendment’s due process clause. Dobbs held that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” can be protected under this provision of the Constitution. To the extent that other rights, such as same-sex marriage, are not “deeply rooted in this Nation’s history and tradition,” the reasoning in the Dobbs opinion calls them into question.

The court, however, tries to tamp down this concern in Dobbs. The majority opinion states that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” specifically including Obergefell. It distinguishes those other precedents as not involving “potential life.” In his concurring opinion, Justice Brett Kavanaugh made the same point: “I emphasize what the court today states: Overruling Roe does not mean the overruling of those precedents and does not threaten or cast doubt on those precedents.”

How much stock can we put in these assurances? Particularly since the court has made clear that precedents that it finds incorrect, no matter how long-established, should be overruled and plainly holds that the 14th Amendment’s due process clause only covers rights that are rooted in history and tradition. Same-sex marriage is not so rooted.

Justice Clarence Thomas, in his concurring opinion in Dobbs, explicitly declares that “in future cases,” the court “should reconsider all of this Court’s substantive due process precedents,” including Obergefell. He calls that decision (and others) “demonstrably erroneous” and states that the court has the duty to “correct the error” established in those cases. Notably, however, no other justice joined his concurring opinion. So, perhaps, there is hope.

In any event, today, Obergefell remains the law of the land nationally. States must grant marriage licenses to same-sex couples and recognize marriages licensed and performed in other states.

But what would happen if Obergefell were overturned?

Prior to Obergefell, most states had some sort of same-sex marriage ban in place, either through the state constitution, state law or both. These bans were invalidated in 2015 by Obergefell. Should the U.S. Supreme Court overturn the right to same-sex marriages, those state laws and constitutional provisions would take effect unless states changed those laws to recognize same-sex marriage.

Given the increased acceptance of same-sex marriage, many states would likely lift their bans. But not all. It is also possible that states could give same-sex marriages fewer or different benefits from those granted to opposite-sex marriages. They could, for example, deny same-sex couples the rights to property and inheritance, adoption or advance health directives.

A ruling overturning Obergefell would not reverse state laws such as Vermont’s that allow same-sex marriage. But same-sex couples married in Vermont would not be able to count on other states recognizing their marriage as valid or providing them with the same rights that they receive in Vermont.


If you have any questions or input on this or other matters related to the recent spate of U.S. Supreme Court opinions, contact me at 802-863-3086 or mlalonde@leg.state.vt.us.

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