After Obergefell: The Next Generation of LGBT Rights Litigation

84 UMKC L. Rev. 605 (2016)

12 Pages Posted: 4 Nov 2016

See all articles by Nancy Levit

Nancy Levit

University of Missouri at Kansas City - School of Law

Date Written: November 3, 2016


Leading to Obergefell v. Hodges, the road to marriage equality was uneven. Several state courts in the 1970s rejected same-sex marriage, based on circular reasoning that avoided the critical constitutional question. The federal government entered the debate and enacted the Defense of Marriage Act in 1996. DOMA restricted the definition of marriage to one man and one woman; and, no state was required to recognize a same-sex marriage performed in another state. State legislatures that had not previously acted enacted mini-DOMAs and others passed constitutional amendments banning same-sex marriage. Within two decades the Supreme Court reversed its position on the criminalization of sexual intimacy between consenting homosexuals. That same year, the Massachusetts Supreme Judicial Court held that the state’s legislative ban on same-sex marriage “confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships.” Other state and federal courts followed in finding bans on same-sex marriage unconstitutional. By the time of Obergefell, 37 states and the District of Columbia recognized same-sex marriage. While this turnaround was rapid in constitutional time, it was painfully slow for LGBT couples who were denied the right to marry. Obergefell is this generation’s Loving v. Virginia. Yet, the sad reality is that the right to same-sex marriage is just the beginning of a conversation. Since Obergefell, the backlash has been swift, with public officials refusing to issue marriage licenses because of individual religious objections; and, despite public accommodations laws, some merchants refusing to serve gay couples. The aftermath of Obergefell is just beginning. The authors in this symposium evaluate the opinion, reflect on it, and forecast for the future the anticipated legal and social consequences of the Court’s recognition of the constitutional right to marry a same-sex partner.

Keywords: Obergefell, same-sex marriage, DOMA, Defense of Marriage Act, homosexual, LGBT, gay couples, Loving v. Virginia

JEL Classification: J12, J16, J18, K10, K30, K40

Suggested Citation

Levit, Nancy, After Obergefell: The Next Generation of LGBT Rights Litigation (November 3, 2016). 84 UMKC L. Rev. 605 (2016). Available at SSRN: or

Nancy Levit (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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