Michigan Must Act Before Marriage Rights Disappear

From defending Obergefell to changing our constitution, here's how to safeguard same-sex marriage

Eli Savit

Published: August 19, 2025 | Last Updated: August 20, 2025

I was in the courtroom in 2015 when the Supreme Court formally recognized a constitutional right to same-sex marriage in Obergefell. At the time, I was a law clerk for Justice Ruth Bader Ginsburg — one of a handful of recent law school grads selected to help justices with research, case evaluation and drafting opinions. When the justices took the bench that morning and the Chief Justice announced “Justice Kennedy has the opinion in Obergefell v. Hodges,” there was an audible gasp in the courtroom. Earlier than expected, the Court surprised the nation by announcing, on a beautiful Friday morning in early summer, that the Constitution protects every person’s right to marry the person they love.

Soon, people flocked to the Court to celebrate love and equality. Though law clerks are supposed to keep a low profile, a handful of us removed our court ID badges and surreptitiously joined the throngs outside. (I forget if I asked Justice Ginsburg her permission, but I’m quite confident she wouldn’t have cared.) We watched as the D.C. Gay Men’s Chorus sang a beautiful a cappella rendition of “America, the Beautiful.” All around, celebrants joyously waved American flags and Pride flags as sunshine glimmered off the Supreme Court’s immaculate marble steps.

It was a striking moment. Only about a decade earlier, before the Lawrence v. Texas decision that struck down sodomy laws, Supreme Court case law provided that the men singing that ode to America could be imprisoned for being with the person they loved. But that day, the same institution had extended the equal dignity of marriage to every American. It brought to mind the famous quote from Martin Luther King: “The arc of the moral universe is long, but it bends towards justice.”

But does it always?

For the first time since Obergefell, marriage equality is now back before the Supreme Court. Earlier this month, former Kentucky county clerk Kim Davis filed a petition asking the Court to eliminate the constitutional right to same-sex marriage. Given these developments, it’s imperative that Michigan act to protect that right here at home.

To get one thing out of the way: It’s far from clear that the Court will actually grant Davis' request. Davis' petition was just that: a petition. She’s been sued (and lost) for refusing to issue marriage licenses to same-sex couples. She’s now asked the Court to hear her case and reconsider marriage equality. But any petition for Supreme Court review faces long odds. The Supreme Court grants only about 60 of the thousands of petitions it receives annually, and typically considers only issues already litigated in lower courts. The lower courts in Davis' case never addressed whether Obergefell should be overturned.

Still, even if the Court declines to hear the case, marriage equality might be on shaky ground. Justice Clarence Thomas has publicly written that he wants to reconsider Obergefell and all cases relying on "substantive due process" — the doctrine protecting fundamental rights like marriage from government restriction. When the Court overruled Roe in 2022, it rejected substantive due process for abortion rights, signaling that other fundamental rights, including marriage, may now be at risk.

If Obergefell falls, each state would be allowed to decide for itself whether to allow same-sex marriage. Michigan, lamentably, still maintains a constitutional provision defining marriage as between one man and one woman. If Obergefell is overruled, that constitutional provision would spring back into effect, preventing Michigan from blessing same-sex marriages.

This moment calls for a three-pronged effort to protect marriage equality in Michigan.

First, we must fight to defend Obergefell itself. In 2015, Michigan's attorney general led the charge against same-sex marriage, arguing before the Court that states should be permitted to bar it. That was wrong then, and it's wrong now. Our next attorney general (and yes, I am running for that position) must take the opposite approach and defend people's constitutional right to marry the person they love.

Second, we must defend existing marriages. The 2022 Respect for Marriage Act requires states to recognize any marriage that was legally valid when celebrated. But if Obergefell is overturned, opponents will inevitably challenge that Act's constitutionality. Our next attorney general must fight such efforts to ensure existing marriages endure and that Michiganders can marry in other states and have those unions recognized here.

Third, we cannot rely solely on the courts to preserve marriage equality in Michigan. Though our state constitution currently provides that marriage is reserved only for heterosexual couples, it also provides that “all political power is inherent in the people” and grants the people the authority to amend our Michigan Constitution via a ballot initiative.

After Roe was overturned in 2022, Michigan voters acted. We amended our state constitution, passed the Reproductive Freedom For All ballot initiative, and protected abortion rights in our state. A similar effort is needed to defend the right to marry. Nearly 70% of Michiganders support same-sex marriage. We should get rid of our constitution’s discriminatory definition of marriage now, before it can ever spring back into effect. Only then can we be sure that every couple in Michigan will retain the right to get married in our state.

I still believe in the promise of that sunny June day 10 years ago, when the Supreme Court recognized that love is love. But we are in a period of retrenchment for civil rights in this country.

If we want the moral arc of the universe to keep bending towards justice here in Michigan, we must bend that arc ourselves. And we must do so before it’s too late.

Washtenaw County Prosecuting Attorney Eli Savit is running for Michigan attorney general in 2026.