Plowing Around Obergefell

David R. Upham*

Abortion is neither constitutionally enumerated, nor on the “select list” of otherwise deeply rooted rights.²² The same is true of “same-sex marriage.” Indeed, in his majority opinion in Dobbs, Justice Alito made precisely the same fundamentalist argument found in his dissent in Obergefell, as well as his plurality opinion in McDonald v. City of Chicago.²³

Therefore, the fears (and hopes) that Obergefell might meet the same fate as Roe appear well founded. Accordingly, since Dobbs, and especially in the last year, a small (but significant) number of prominent officials have called for Obergefell’s reversal, most notably state legislative chambers in Idaho and South Dakota.²⁴

In this Article, I will contend that these conservative efforts are misguided. Although Obergefell, like Roe, was “egregiously wrong,”²⁵ the decision cannot and should not be overturned in our time. Nor is such reversal even necessary. Conservative states can vigorously promote “natural” and even “traditional” marriage by policies that leave Obergefell alone. Social conservatives should seek merely to contain Obergefell and otherwise “plow around” it.

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© 2026 David R. Upham. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Law, St. Thomas University College of Law; Senior Fellow in Politics and Law, University of Dallas. I am grateful to the Notre Dame Law Review editors for their extensive work, to St. Thomas University for financial support. Special thanks, for helpful feedback and conversation, go to my colleagues Professors John and June Mary Makdisi, as well as participants at seminars and conferences sponsored by the University of Dallas, the New Saint Andrews College, and the Pontifical John Paul II Institute for Studies on Marriage and Family.

22 Id. at 2245, 2253.

23 Id. at 2246; Obergefell, 576 U.S. at 737 (Alito, J., dissenting); McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).

24 See Jason Lemon, Ten Years After Landmark Supreme Court Ruling, Is Same-Sex Marriage at Risk?, NEWSWEEK (June 26, 2025, at 13:33 ET), https://www.newsweek.com/2025/07/04/ten-years-after-landmark-supreme-court-ruling-same-sex-marriage-risk-2088309.html [https://perma.cc/Z4FT-7ZZE]; H.R.J. Mem’l 1, 68th Leg., 1st Reg. Sess. (Idaho 2025); H.R. Con. Res. 6012, 2025 Legis. 100th Leg. Sess. (S.D. 2025).

25 Dobbs, 142 S. Ct. at 2243.