By JT Santana | jtwb769

Eleven years after Obergefell v. Hodges recognized a constitutional right for same-sex couples to marry, Justice Samuel Alito is making an argument that deserves far more scrutiny than a simple debate over whether the Supreme Court might someday reverse that decision. In his newly released book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, Alito republishes remarks in which he described Obergefell as “perhaps the decisive point in our nation’s turn against religious liberty.” He has spent years warning that Americans who believe marriage is exclusively between one man and one woman risk being driven from public life, treated as bigots, or forced to choose between their faith and participation in civic society (Alito, 2026; Dwyer, 2026). 

That argument should receive careful attention from LGBTQ Americans and anyone concerned with equal citizenship. The immediate issue is not that Alito has announced a plan to erase marriage equality. He has recently said the opposite: in an October 2026 CBS News interview, he said he sees no realistic prospect that Obergefell will be overruled, citing the concrete reliance interests created by marriages, contracts, families, property arrangements, and other legal relationships formed since 2015 (Quinn, 2026). His position is more complicated, and in some respects more consequential, than an open call for reversal. 

Alito continues to say the Court was wrong to recognize a constitutional right to same-sex marriage. At the same time, he now treats Obergefell as precedent that is unlikely to disappear. The danger lies in the space between those two positions. A justice can leave the marriage license intact yet support a widening series of religious exemptions that permit institutions receiving public funds, businesses engaged in expressive activity, government contractors, schools, social-service providers, or public officials to resist legal duties connected to LGBTQ equality.

Marriage equality can survive on paper and still lose much of its meaning in practice. That is the legal and political problem at the center of this article, and it is far harder to spot than a direct attack on the marriage license itself.

What Alito Is Actually Arguing

When the Supreme Court decided Obergefell on June 26, 2015, the Court held 5–4 that the Fourteenth Amendment requires states to license marriages between two people of the same sex and recognize such marriages lawfully performed elsewhere. Justice Anthony Kennedy wrote for the majority. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito each dissented. 

Alito’s dissent focused on democratic authority and constitutional interpretation. He argued that the Constitution does not answer the same-sex marriage question and that state voters and legislatures should have remained free to decide marriage policy for themselves. In his view, the majority had converted a relatively new social and political claim into a constitutional right without sufficient grounding in constitutional text or longstanding historical practice (Obergefell v. Hodges, 2015). 

Yet Alito did more than disagree over interpretive method. He predicted that the ruling would have consequences for people who held traditional religious views about marriage. He warned that those beliefs could increasingly be treated as evidence of bigotry and that people expressing them might encounter adverse consequences in employment, education, government service, or public life. His concern was not confined to church doctrine or private worship. It extended to the social and legal consequences facing religious believers once same-sex marriage became a constitutionally protected institution.

That distinction has become central to his thinking. The legal question is no longer confined to whether a church may preach that marriage is heterosexual. No serious constitutional argument says government can require a church to rewrite its theology. The harder disputes concern what happens when religious convictions are used to justify conduct that affects another person’s access to a public program, government service, commercial transaction, employment opportunity, educational institution, child-placement services, or publicly funded benefit.

Those conflicts are real. The troubling feature of Alito’s framing is his tendency to treat the legal protection of LGBTQ people in those conflicts as evidence that religious liberty itself has been diminished.

Alito’s new book gives fresh visibility to remarks he delivered years ago, including a 2018 speech at the Catholic University of America. ABC News reported that Alito described Obergefell there as “perhaps the decisive point” in a national turn against religious liberty. He linked the decision to his earlier fear that equating traditional views on marriage with bigotry could push religious believers out of public life (Dwyer, 2026). 

There is a major conceptual leap inside that argument. The government recognizing a same-sex couple’s civil marriage is one legal event. A private citizen criticizing somebody who opposes that marriage is another. A public-accommodations law barring a business from discriminating against customers is yet another. A religious school seeking public money under conditions requiring equal access presents another constitutional dispute. Treating all of these events as parts of a single campaign against religion collapses distinctions that law has to keep separate.

Religious liberty protects belief with extraordinary force. A Catholic parish may teach that marriage is between a man and a woman. An evangelical pastor may preach against same-sex relationships. A synagogue, mosque, church, or other faith community may define religious marriage according to its own doctrine. Private citizens may publish, protest, organize, donate, campaign, worship, and speak from those convictions.

Marriage equality did not repeal those rights. Those protections remain part of the constitutional structure, and defending equal marriage does not require stripping them away.

The tension begins when religious belief is asserted as a legal basis for treating another person differently in a setting governed by civil law. A county clerk is not acting as a private believer when issuing a state marriage license. A contractor administering a publicly funded program is not situated identically to a congregation choosing its clergy. A commercial business selling services to the general public raises different questions from a minister performing a sacrament.

Alito’s approach repeatedly pushes those categories closer together. That movement deserves attention, since it can transform religious liberty from a shield protecting belief and worship into a constitutional claim for exemption from neutral legal obligations.

Few disputes illustrate the issue better than Kim Davis, the former Rowan County, Kentucky, clerk who refused to issue marriage licenses after Obergefell. Davis said her Apostolic Christian beliefs prevented her from authorizing licenses for same-sex couples. Her refusal was not limited to personal speech. She was an elected government official responsible for administering Kentucky’s marriage-licensing system.

In 2020, the Supreme Court declined to hear one phase of her litigation. Justice Thomas issued a statement concerning the denial of review, and Alito joined it. The statement accused Obergefell of privileging a newly recognized constitutional right over religious liberty and argued that the decision had left people with traditional marriage beliefs exposed to legal conflict. It portrayed Davis as someone placed in a difficult position by the Court’s constitutional ruling and ended with an unmistakable assertion that the Court had created a problem that only the Court could repair (Davis v. Ermold, 2020). 

That statement deserves to be read carefully. Davis was not punished for attending church, preaching against same-sex marriage, donating to an anti-marriage-equality organization, or stating that she personally believed my marriage would be sinful. The dispute arose from her refusal, as a government official, to provide a civil service that the Constitution required Kentucky to provide equally.

That difference is fundamental. It separates personal belief from the exercise of state authority and marks the point at which another citizen begins bearing the cost of the objection.

If an elected official can claim a religious exemption from carrying out a constitutional duty, then the citizen standing at the counter bears the cost of that official’s theology. The gay couple does not merely hear that someone disapproves of them. They encounter government authority telling them that access to a civil institution depends on the religious conscience of the person assigned to administer it.

A pluralistic constitutional system must protect religious dissent. It must also protect citizens from having another person’s religion imposed through governmental authority. Those protections are not mutually exclusive.

Why a “Safe” Obergefell Can Still Produce Unequal Citizenship

Any serious article on this subject has to account for something Alito said in October 2026 that complicates the picture. In a rare CBS News interview, he said there was not a realistic prospect that Obergefell would be overruled. He cited stare decisis, the doctrine under which courts give weight to precedent, and focused on what lawyers call reliance interests (Quinn, 2026). 

His reasoning is concrete. Since 2015, same-sex couples have married, purchased homes, executed contracts, adopted children, combined finances, planned estates, obtained benefits, assumed debts, designated medical decision-makers, filed taxes, and structured their lives around legal marriage. Alito contrasted those arrangements with what he characterized as the more abstract reliance claims associated with Roe v. Wade before he authored the 2022 opinion overturning it in Dobbs v. Jackson Women’s Health Organization (Quinn, 2026).

That statement is significant, and it should not be dismissed merely to make the threat sound larger. Alito is plainly distinguishing Obergefell from Roe. He is signaling that his original disagreement with the 2015 ruling does not automatically translate into a present vote to reverse it.

The Court gave another signal in November 2025. Kim Davis returned with a petition explicitly asking the justices to overturn Obergefell. The Court denied review without comment. A denial of certiorari does not establish that every justice supports the lower court or the precedent being challenged. It does establish that the Court declined that opportunity to reconsider marriage equality, and fewer than four justices were publicly identified as wanting to take the case (Supreme Court of the United States, 2025). 

Those facts should calm one particular fear: there is no current evidence that five justices are preparing an imminent direct reversal of Obergefell. They do not resolve the separate question of how much practical equality may be narrowed through exemptions. That second question remains very much alive.

Civil rights rarely exist as a single sentence in a court opinion. Their real value depends on the network of rules, duties, remedies, institutions, and enforcement mechanisms surrounding them. A constitutional right can remain formally recognized yet become harder to exercise or less equal in daily life.

Marriage provides an obvious example. A marriage license is valuable in part through the legal status that follows it. Marriage affects taxation, inheritance, property, parental rights, hospital access, insurance, pensions, survivor benefits, immigration, Social Security, medical decision-making, adoption, estate planning, and hundreds of other legal relationships. Equal marriage means more than permission to hold a ceremony.

A similar principle applies to nondiscrimination. If the law says two men may marry but increasingly permits schools, service providers, contractors, publicly subsidized institutions, or government partners to treat their marriage as morally disqualifying, formal recognition begins to separate from substantive equality.

That is the concern Alito’s religious-liberty theory raises. He does not need to vote to erase Obergefell if the Court can steadily enlarge the constitutional zone in which institutions may refuse equal treatment connected to same-sex relationships.

This does not mean every religious-exemption claim is illegitimate. Some are strong. Government cannot display hostility to religion, target religious practice for punishment, compel clergy to perform marriages, or force a church to surrender control over doctrine. Free Exercise and Free Speech claims deserve serious treatment.

The issue is where the exemption stops. Every exemption has two sides: the institution receiving relief and the person who experiences the consequence. Courts that discuss only the claimant’s conscience risk making the affected citizen legally invisible.

Colorado Puts the Theory Before the Court

A pending Supreme Court case makes this debate immediate. In St. Mary Catholic Parish v. Roy, the justices will hear argument on November 3, 2026, over Colorado’s universal preschool program. The case asks whether Colorado violated the Free Exercise Clause by applying equal-opportunity requirements to participating religious preschools without granting the exemption the schools seek (Supreme Court of the United States, 2026). 

Colorado created a mixed system in which public and private providers may participate in a publicly funded preschool program. State law requires participating providers to give eligible children equal opportunity to enroll and receive services regardless of several protected characteristics, including sexual orientation and gender identity as those characteristics apply to a child or the child’s family. 

The Catholic petitioners maintain religious teachings concerning marriage, sexuality, and sex. Court filings state that participating Catholic preschools consider family circumstances connected to sexual orientation and gender identity when making admissions decisions and require families to accept or refrain from publicly contradicting certain Catholic teachings. The schools argue that Colorado is conditioning access to a public benefit on surrendering religious practice, contrary to the First Amendment (United States, 2026). 

Colorado and supporting amici frame the issue differently. They argue that the state is funding a universal public program and may insist that participating providers offer equal access to eligible children. From that perspective, an exemption would permit a school receiving public preschool funds to exclude or disadvantage a child based on the identity or family structure of the child’s parents. 

That conflict is far more revealing than an abstract debate over whether Obergefell survives. If the Court broadens religious exemptions in a case such as this one, LGBTQ families may retain every marriage license they possess yet encounter a legal rule allowing publicly funded institutions to treat those families differently.

The Court granted review on two Free Exercise questions and declined to take a third question asking it to overrule Employment Division v. Smith. That procedural choice narrows the case. It still leaves the Court with a chance to define how aggressively states must accommodate religious providers inside public-benefit programs (Supreme Court of the United States, 2026). 

For LGBTQ families, the practical question is easy to state: if public money funds a program advertised as universal, can a participating institution invoke religion to reject a child over the child’s parents? The constitutional answer will carry consequences far beyond preschool. It may shape how courts think about public funding, equal access, and religious exemptions in many other programs.

Congress enacted the Respect for Marriage Act in 2022 after the Dobbs decision reignited fear that marriage precedents could face renewed challenges. The statute repealed the federal Defense of Marriage Act framework and requires states to recognize valid marriages from other jurisdictions without discriminating based on the sex, race, ethnicity, or national origin of the spouses. It likewise protects federal recognition of valid same-sex marriages (Respect for Marriage Act, 2022). 

The law contains explicit religious-liberty protections. It states that the Act does not diminish protections already available under the Constitution or federal law. It further provides that nonprofit religious organizations cannot be compelled under the Act to provide services, facilities, goods, or privileges for the solemnization or celebration of a marriage (Respect for Marriage Act, 2022). 

That text exposes a weakness in claims that marriage equality itself extinguished religious freedom. Congress managed to protect same-sex marriages and write religious protections into the same statute. The legal system is capable of recognizing gay couples without ordering churches to perform their weddings.

The Act is still not a full substitute for Obergefell. If the Supreme Court someday reversed the constitutional right to marriage equality, federal law would require states to recognize a same-sex marriage validly performed elsewhere. It would not necessarily require every state to issue a new same-sex marriage license within its own borders. 

That could create a bizarre patchwork. A couple living in a hostile state might be required to travel elsewhere to marry, then return home with a marriage the state must recognize. Access would depend partly on money, transportation, health, disability, work schedules, geography, and the practical ability to cross state lines.

Formal recognition would remain, yet equal access would not. That is the gap between having a right in theory and being able to exercise it on equal terms in ordinary life.

Iowa, Thomas, and the Legal Backstops

For Iowa readers, there is another layer. Marriage equality arrived here six years before Obergefell. In Varnum v. Brien (2009), the Iowa Supreme Court unanimously held that excluding same-sex couples from civil marriage violated the equal protection guarantee of the Iowa Constitution. 

That state constitutional foundation means Iowa does not depend solely on Obergefell for marriage equality. A future federal reversal would not, by itself, erase Varnum. Iowa would remain governed by its own constitutional ruling unless that protection were displaced through a later state legal or constitutional change. 

Iowans should still pay close attention to the national cases. Federal constitutional rulings on religious exemptions, public funding, education, employment, government contracting, and nondiscrimination apply here too. A marriage can remain valid in Davenport and still exist inside a national legal system that grants wider permission to institutions seeking to treat that marriage differently.

Iowa’s history should sharpen the question rather than soften it. In 2009, our state’s highest court did not hold that religious citizens had to approve of same-sex marriage. It held that the state could not deny gay and lesbian couples equal access to civil marriage without an adequate constitutional justification.

That distinction remains the right one. Civil marriage is a state-created legal status, and equal access to it need not dictate the doctrine of any religious institution.

It is easy to combine Justices Thomas and Alito into a single ideological category, yet their stated positions on Obergefell are not identical. Thomas has been more explicit about revisiting substantive due process precedents. In his 2022 Dobbs concurrence, he wrote that the Court should reconsider decisions including Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges (Dobbs v. Jackson Women’s Health Organization, 2022). 

No other justice joined that concurrence. Thomas’s position is his own stated position, not a holding of the Court and not a position publicly adopted by the rest of the majority in Dobbs. 

Alito’s majority opinion in Dobbs took a different route. It stated that the abortion decision did not cast doubt on precedents involving contraception, intimate relationships, or marriage. His 2026 interview went further, saying that Obergefell has acquired reliance interests that make reversal unrealistic. 

Those distinctions are legally meaningful. They are one reason claims that the present Court has already decided to abolish marriage equality are unsupported. Accuracy here strengthens the criticism rather than weakening it.

Yet Alito’s position may produce a subtler set of risks. Thomas openly identifies precedents he would reconsider. Alito can preserve precedent and still support doctrines that reduce how far equality reaches when it collides with religious objections.

For people interested in the practical security of LGBTQ rights, the second path deserves at least as much attention as the first. A right can remain formally intact at the same time its practical reach contracts through a growing body of exemptions.

Religious Liberty Cannot Become a License to Govern Other People

The United States has a long and valuable tradition of protecting religious exercise. Religious minorities have often depended on the First Amendment against hostile majorities. Jews, Muslims, Catholics, Sikhs, atheists, Native religious practitioners, minority Christian denominations, and many others have needed legal protection from government coercion or exclusion.

LGBTQ equality does not require weakening those protections. The strongest legal framework protects religious belief and LGBTQ citizenship at the same time. That framework asks courts to distinguish carefully between doctrine, expression, private association, commercial conduct, and the administration of public programs.

A pastor should be free to refuse to officiate a same-sex wedding. A church should be free to teach its doctrine on marriage. A private citizen should be free to call my marriage sinful, immoral, misguided, or contrary to scripture. Government should not censor those views merely on the ground that they offend me.

Yet religious freedom cannot mean that every person acting under civil authority may impose that belief on me. A clerk issuing state licenses, an agency administering taxpayer money, or a contractor operating a public program occupies a different legal position from a minister at an altar.

The distinction is not hostility to religion. It is a boundary between private conscience and public obligation. Constitutional protection loses coherence if every public duty becomes optional whenever an official can identify a sincere theological objection.

When Alito describes the legal consequences of LGBTQ equality as evidence of a national turn against religion, he risks erasing that boundary. He makes the believer’s burden vivid and the gay citizen’s burden secondary. The person seeking an exemption becomes the constitutional protagonist. The family denied service becomes background.

That is precisely the framing civil-rights law has to resist. Equal citizenship cannot depend on treating the burdens imposed on the protected group as legally secondary.

Alito has repeatedly expressed concern that people who hold traditional views on marriage are labeled bigots. Some are. Some are criticized harshly. Some lose social standing or professional opportunities after making statements about LGBTQ people.

The First Amendment does not promise protection from criticism. It protects expression from government suppression; it does not require other citizens to respond with approval, silence, or social acceptance.

A person has the right to say that same-sex marriage violates God’s law. Another person has the right to call that belief prejudiced. The government cannot transform disagreement into constitutional injury merely on the ground that one side experiences social condemnation.

This distinction becomes especially relevant when Alito’s examples mix legal sanctions, cultural criticism, employment disputes, school policies, commercial regulations, and public controversy. Each setting involves different rights and legal standards. A nation in which religious people sometimes lose lawsuits is not necessarily a nation hostile to religion.

The Supreme Court’s recent record makes the persecution narrative harder to sustain. During the Roberts Court, religious claimants have won a striking series of major cases involving public benefits, school funding, child-placement services, workplace accommodations, compelled expression, and government neutrality. Recent reporting found that, since the 2020 term, the Court sided with religious groups seeking broader rights in seven of eight relevant cases, and a longer historical analysis found a sharp increase in rulings favorable to religious-rights claims during the Roberts Court (Mark & Jouvenal, 2026). 

That does not prove every religious-liberty problem has been solved. It does make it difficult to describe modern American constitutional law as systematically stripping religious people of legal protection. A legal system can contain genuine disputes over religious freedom without fitting the description of an organized constitutional retreat from religion.

The Next Fight Is Over What Marriage Equality Means

Marriage equality retains majority support in the United States, yet recent polling supplies another reason for attention. Gallup reported in June 2026 that 65% of U.S. adults said same-sex marriages should be legally valid. That is still a clear majority, but it is six percentage points below the 71% peak recorded in 2022 and 2023 (Jones, 2026). 

The decline does not mean marriage equality is suddenly politically unpopular. It does show that social consensus is not irreversible. Attitudes can shift, partisan divisions can deepen, and rights once treated as settled can return to active political conflict.

Courts operate inside that environment without being controlled by it. Litigants choose cases strategically. Advocacy organizations build doctrine incrementally. Legal rules governing religious exemptions may change one dispute at a time, often through cases that sound narrow when taken individually.

A preschool case can become a rule about public funding. A website case can become a rule about compelled expression. A child-placement case can alter the standards governing religious exemptions. Years later, the accumulated doctrine may look far more significant than any single decision appeared at the moment it was announced.

That incremental process is why Alito’s theory warrants sustained scrutiny now. Small doctrinal changes can accumulate into a major shift in what equal treatment means on the ground.

Marriage equality changed American law, but the next phase of the conflict is less likely to center on a courthouse refusing two men or two women a license. The emerging fights concern what legal equality requires after the license is issued.

Can a publicly funded school reject a child over the child’s same-sex parents? Can a government contractor decline service to a married gay couple? Can a state official invoke personal faith against duties attached to public office? Can a business claim that compliance with nondiscrimination law compels expression? Can government fund organizations that openly discriminate against LGBTQ families yet insist that the arrangement is constitutionally required by religious liberty?

Those are no longer hypothetical questions. Variations of them have already reached courts across the country. The disputes now concern the boundaries of equality rather than the existence of marriage alone.

The legal answer cannot be that religion always loses. It cannot be that religion always wins either. Constitutional adjudication requires a rule that protects conscience without assigning the costs of every religious objection to someone outside the faith.

A constitutional democracy has to protect conscience without converting conscience into authority over strangers. It has to respect churches without turning public programs into extensions of church doctrine. It has to permit disagreement over same-sex relationships without allowing civil status to rise or fall according to the theology of whoever happens to control a service.

Alito’s framework places unusual weight on the first half of that balance. LGBTQ Americans have reason to ask who pays for the exemptions that follow. The answer is often a family seeking equal access to a civil program, service, or institution.

There is no sound basis today for claiming that Samuel Alito has announced an intention to overturn Obergefell. His October 2026 comments point in the opposite direction. The Supreme Court rejected Kim Davis’s 2025 request to reopen the precedent, and Alito now says the legal reliance built around same-sex marriage makes reversal unrealistic. 

That reassurance has limits. Precedent can remain formally untouched at the same time surrounding doctrine changes the practical protections attached to it.

Alito still says Obergefell was wrongly decided. He still describes it as a turning point against religious liberty. He joined Thomas’s 2020 statement portraying the ruling as having created a constitutional problem for religious objectors. He remains part of a Court that has repeatedly strengthened religious-liberty claims, and that Court is preparing to decide another case in which a religious institution seeks exemption from LGBTQ-inclusive conditions attached to a public program. 

The central threat is not necessarily the disappearance of the marriage certificate. It is the possibility that equal citizenship becomes increasingly conditional. That form of erosion is less dramatic than an outright reversal, yet it can be deeply consequential in daily life.

A gay couple may remain legally married, yet their child can be excluded. Their family may be recognized, yet a publicly funded provider can claim a constitutional right to treat that family differently. Their marriage may exist in federal law, yet exemptions can accumulate around employment, education, contracting, services, and public programs.

At some point, a right surrounded by enough exceptions becomes something less than equal. The legal label survives, yet the lived protection attached to that label can shrink.

Religious liberty is indispensable. So is the principle that civil government belongs equally to people whose marriages a church celebrates and people whose marriages that church rejects. The Constitution should protect both without quietly turning one person’s theology into another person’s legal disability.

Samuel Alito’s argument deserves attention for that reason. The real question facing the country is no longer merely whether same-sex couples may marry. It is whether American law will continue treating those marriages, those families, and those citizens as fully equal once religious objections enter the room.

References

Alito, S. A., Jr. (2026). So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country. Basic Liberty.

Davis v. Ermold, 592 U.S. ___ (2020) (Thomas, J., statement respecting denial of certiorari, joined by Alito, J.).

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

Dwyer, D. (2026, October 6). Alito calls same-sex marriage a “decisive” turn “against religious liberty” in new book. ABC News.

Jones, J. M. (2026, June 3). U.S. support for LGBTQ+ issues remains down from peak. Gallup.

Mark, J., & Jouvenal, J. (2026, October 12). How the Supreme Court is reshaping the limits of religious rights in America. The Washington Post.

Obergefell v. Hodges, 576 U.S. 644 (2015).

Quinn, M. (2026, October 5). Takeaways from Alito’s CBS News interview: His future on the Supreme Court, opinion in Dobbs and rise in heated political rhetoric. CBS News.

Respect for Marriage Act, Pub. L. No. 117-228, 136 Stat. 2305 (2022).

Supreme Court of the United States. (2025). Davis v. Ermold, No. 25-125, docket.

Supreme Court of the United States. (2026). St. Mary Catholic Parish v. Roy, No. 25-581, docket.

United States. (2026). Brief for the United States as amicus curiae supporting petitioners, St. Mary Catholic Parish v. Roy, No. 25-581.

Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).