As June 26, 2025 marks the 10th anniversary of the Obergefell v. Hodges ruling, the landmark 2015 U.S. Supreme Court opinion that legalized “same-sex marriage” nationwide, those Justices’ dissents are still some of the most scathing in modern court history.

The 5-4 ruling had four dissenting Justices: Chief Justice John Roberts, the late Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito. A decade after the opinion, Obergefell’s dissenting voices still reveal the ongoing legal and cultural debates surrounding the ruling and highlight its legal vulnerability. In their opposition to Obergefell, each wrote about several common themes, which include errors in constitutional interpretation, democratic exclusion, and undermining religious liberty through redefining marriage.

These dissents are particularly salient, especially with a Supreme Court in place today that overturned court-appointed abortion rights in the 2022 Dobbs v. Jackson Women’s Health Organization decision, and as Liberty Counsel’s Davis v. Ermold seeks an audience with the High Court to overturn Obergefell.

Chief Justice Roberts argued that the “five lawyers” in the slim majority essentially rescinded natural marriage between one man and one woman and declared it “wrong.” The four Justices explained that the majority imposed “same-sex marriage” on all the states by misunderstanding “liberty” as a “sword” to demand “government benefits,” such as legal recognition of same-sex couples, rather than as a “shield” to protect actual rights. The dissenters also noted that the majority ultimately abandoned the court’s role to judge the law in favor of creating it.   

Faulty Interpretation of the Constitution 

Obergefell’s dissenters sharply criticized the majority for straying from the Constitution’s text and structure and instead relying on a philosophy of “dignity” to invent a new constitutional right. The dissenters rejected the idea that the 14th Amendment’s Due Process or Equal Protection Clauses provide a constitutional right to “same-sex marriage.”

“The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife,” wrote Chief Justice Roberts. “The fundamental right to marry does not include a right to make a State change its definition of marriage.”

Chief Justice Roberts stated the ruling was “an act of will, not legal judgment” that consisted of judicial activism untethered from the Constitution’s original meaning. 

Both Justices Thomas and Alito also found insufficient grounds in the constitutional text for judicially creating new rights, and suggested the majority inserted their own policy preferences in the opinion rather than just pure law interpretation.

“Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State,” wrote Justice Thomas. “…the Constitution contains no ‘dignity’ Clause, and even if it did, the government would be incapable of bestowing dignity.” He further explained the majority “disregards” liberty and “misapplies” Due Process by bestowing government recognition on something that has nothing to with the liberty that “the Framers would have recognized.” 

Justice Scalia described the opinion as full of “hubris,” and labeled it a “threat to American democracy.” 

“The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.” Regarding marriage, Justice Scalia further noted the decision “robs” all Americans of “the most important liberty asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” 

Sidestepping the Democratic Process

Regarding the “threat” to democracy, the dissenters argued the Obergefell opinion usurped the role of the people and their elected representatives to define marriage through legislation. They stated that the Court had wrongly silenced democratic debate on “same-sex marriage” by court decree. 

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” wrote Chief Justice Roberts. “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”

According to Justice Scalia, the Court’s opinion was a display of “super-legislative” power.

“[T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Justice Thomas also noted that the opinion not only stripped authority from the people, but he predicted it would weaken religious liberty. 

Justice Thomas wrote, “Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.” 

Undermining Religious Liberty By Redefining Marriage 

Justices Roberts and Alito both recognized that marriage has always been naturally and historically defined as the union of a man and a woman, and primarily tied to procreation and child-rearing. 

“This universal definition of marriage as the union of a man and a woman is no historical coincidence,” wrote Chief Justice Roberts. “Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.” 

Chief Justice Roberts continued, “[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” 

With the Obergefell opinion breaking from the historical definition of marriage to include same-sex couples, the dissenting Justices predicted it would pit people with sincerely held religious beliefs—who are actually protected by the Constitution—against the government. 

“In our society, marriage is not simply a governmental institution; it is a religious institution as well,” wrote Justice Thomas. “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.” 

Justice Alito also warned that people who would “cling” to their faith in public would be treated by the government as “bigots.” 

Now, 10 years later in Davis v. Ermold, Liberty Counsel will petition the High Court to review the case of Kim Davis, a former Rowan County Kentucky Clerk who has been held personally liable for not issuing a “marriage” license to David Ermold and David Moore. Davis became Obergefell’s first victim serving six days in jail, and now has $360,000 in damages and attorney’s fees levied against her personally for refusing to issue marriage licenses against her religious beliefs, even though she was entitled to a religious accommodation. After the Obergefell opinion, Davis discontinued issuing all marriage licenses but referred same-sex couples to clerks who would issue them. She never blocked any person from obtaining a marriage license. The question Liberty Counsel will ask the U.S. Supreme Court to answer is whether the First Amendment shields Davis from liability for emotional damages based solely on hurt feelings while arguing that Obergefell should be overruled.

Liberty Counsel Founder and Chairman Mat Staver said, “As predicted by the dissenting Justices, Obergefell v. Hodges threatens the religious liberty of Americans who believe marriage is the sacred institution between one man and one woman. The wrongly decided opinion put Kim Davis in jail for six days and made her personally liable for emotional damages for upholding her sincerely held religious beliefs. We will petition the U.S. Supreme Court because Davis’ case underscores why the High Court should overturn Obergefell. The U.S. Constitution provides no foundation for ‘same-sex marriage’ and the First Amendment precludes making the choice between your faith and your livelihood.”