The Supreme Court does not have to write “Obergefell is overruled” to undo marriage equality. It only has to change the questions it asks and the amount of scrutiny it applies when government harms queer families. Department of State v. Muñoz was the first blow. A worst-case outcome in Little v. Hecox would be the second. Together, they give this Court a clean way to keep the right to marry on paper while stripping it of the substance that made Obergefell transformative.
Muñoz: Unbundling Marriage by Choice, Not Necessity
Muñoz looked, at first glance, like a technical immigration case. A United States citizen, Sandra Muñoz, married a Salvadoran husband whose immigrant visa was denied without any real explanation. Years later, as the case climbed toward the Supreme Court, the government finally disclosed that it had relied on a supposed gang affiliation inferred from his tattoos. When Muñoz challenged that refusal, the Court held that she had no protected liberty interest in his admission at all. There was, the majority said, no fundamental right at stake when the government kept spouses in different countries.
It is important to pause here over one procedural fact that should unsettle anyone who still believes this Court is merely “calling balls and strikes.” Strictly speaking, the Supreme Court never needed to take Muñoz at all.
Muñoz’s original due process claim was simple: the government tore her family apart and refused to tell her why. The Ninth Circuit agreed that a U.S. citizen spouse has a due process right to a timely, factual reason when the government denies her partner’s visa, and it held that providing an explanation only after years of litigation was not good enough. By the time the case reached the Supreme Court, however, the State Department had finally disclosed its rationale. In other words, the core “you never told me why” due process problem had been resolved in the most basic, practical sense.
Justice Gorsuch, in a separate concurrence, essentially called the majority out on this. He agreed that the Ninth Circuit’s judgment should be reversed, but only because Muñoz had already gotten what she first asked for, a reason. Once that happened, he wrote, the big constitutional questions about the scope of the right to marriage “no longer have any practical relevance.” During oral argument he pushed the same point, pressing the lawyers on why the Court needed to be there at all now that the government had coughed up an explanation and invited Muñoz to seek a new decision on her husband’s admissibility. The message between the lines was clear: this is not the vehicle for a grand pronouncement about what marriage does or does not mean under the Constitution.
Yet the majority took the case anyway and did exactly that. Instead of resolving the narrow, almost moot dispute about timing and notice, the Court reached out to answer a much broader question: whether a citizen has any fundamental liberty interest in having her spouse admitted to live with her in her own country. It framed that interest in the narrowest way possible and then announced, in sweeping terms, that no such fundamental right exists. The dissenters, led by Justice Sotomayor, all but accused the majority of using Muñoz’s immigration fight as a vehicle to rewrite marriage law, asking how the Court had managed to turn a case about consular notice into a referendum on whether the Constitution protects the basic ability of spouses to share a home.
That is what makes Muñoz so alarming in the LGBTQ+ context. This was not an unavoidable collision with Obergefell that the Court reluctantly managed. It was a choice. The justices could have sidestepped the liberty interest question entirely on mootness grounds, as Gorsuch urged. Instead, the majority reached for it, seized it, and used a case that no longer truly needed deciding to plant a new rule: the right to marry does not necessarily include the right to live with your spouse. That deliberate overreach is what turns Muñoz from an immigration dispute into a loaded weapon waiting to be picked up the next time a state asks permission to slice something else out of the bundle of rights that once made marriage equality feel real.
This holding is startling because it cuts against a long tradition of treating marriage and family unity as core constitutional interests. For more than half a century, the Court has described marriage as a fundamental right and tied that status to the real-world ability of spouses to live together, form a household, and rear children. Obergefell took that understanding to its logical conclusion. It insisted that marriage is not a word on a certificate but a bundle of interwoven rights, responsibilities, and dignities. The state could not meaningfully exclude same sex couples from that bundle and still claim to respect equality.
Muñoz quietly disavows that architecture. The majority refuses to describe the case as involving the right to marry or the right to live with one’s spouse. It narrows the claim down to a tiny, technocratic formulation, the asserted right of a citizen to have a noncitizen spouse admitted to the United States. Once the right is chopped into that specific slice, the outcome is preordained. Under the Glucksberg test, only rights that are deeply rooted in the nation’s history and tradition qualify as fundamental. The Court combs through history, unsurprisingly finds no clear tradition of courts second guessing consular visa decisions, and declares the right non-existent.
The move matters more than the result. By redefining the right, the Court unbundles one of the oldest incidents of marriage, the expectation that spouses may live together, from the constitutional right to marry itself. Marriage, in this telling, is an empty shell the state can hand out while reserving the power to peel away its contents whenever a particular incident looks historically “novel.” Muñoz does not say Obergefell was wrong. It simply treats a claim that many would have understood as bound up with marriage as if it were some separate liberty interest that has to stand alone and fails.
That is the new template. When queer families invoke the Constitution, the Court can insist that they are not really talking about marriage at all. They are talking about adoption placement, parentage presumptions, hospital visitation, tax treatment, or recognition of marital status in a particular context. Each piece is isolated, repackaged, and then dropped into Glucksberg’s history machine, which predictably announces that nothing connected to same sex couples is deeply rooted. Muñoz turns the right to marry into a label while converting the substance of married life into a series of narrow claims that courts feel free to reject.
Hecox: Biology, Tradition, and Radical Deference
Little v. Hecox arrives from a very different doctrinal neighborhood, but in a worst-case outcome it supplies the missing half of the equation. Hecox involves Idaho’s “Fairness in Women’s Sports Act,” the first state law to impose an outright ban on transgender women and girls participating on girls and women’s sports teams. The statute requires that teams labeled for females be limited to students whose sex was assigned female at birth, and it authorizes invasive “verification” procedures if anyone disputes a girl’s sex.
A transgender college runner, Lindsay Hecox, and a cisgender high school student challenged the law. The Ninth Circuit treated the act as sex-based discrimination and applied a form of heightened scrutiny, ultimately keeping the ban on hold. Idaho officials asked the Supreme Court to step in. The Court has now agreed to decide whether a state may categorically require sports participation based on “biological sex” for girls and boys, under both the Equal Protection Clause and, in a companion case from West Virginia, Title IX.
The question presented is framed in neutral terms. The stakes are not. In Hecox and its West Virginia counterpart, the Court is being asked to decide two things that will radiate far beyond sports. One is what level of scrutiny applies when a state targets transgender people through “biological sex” classifications. The other is how much deference courts owe when a legislature invokes fairness, safety, and tradition to justify those lines.
In a best-case scenario, the Court would treat discrimination against transgender women and girls as a form of sex discrimination, recognize transgender status as at least quasi suspect, and insist on genuine intermediate scrutiny. In the worst scenario, the Court will accept Idaho’s invitation to say that such classifications are ordinary social policy, that transgender people are not a protected class, and that a state’s decision to separate girls’ sports by “objective biological sex” is rational and presumptively legitimate.
That is the nightmare many are now planning around. If Hecox comes down that way, the doctrine will say two things. First, that courts should be highly deferential whenever a state sorts people by biological sex in the name of tradition or fairness. Second, that laws disadvantaging transgender people, and by extension many laws disadvantaging queer people more broadly, trigger only rational basis review. Equal protection stops being a shield. It becomes a polite ritual of asking whether the government can articulate any conceivable legitimate reason for what it has done. Once the answer is yes, the analysis ends.
Alone, a bad Hecox is already enough to uphold a wide range of anti transgender and anti LGBTQ+ laws. When a state prefers heterosexual couples in adoption or foster placement, it can dress the policy in language about biological complementarity and optimal child rearing, then insist that the classification is rational. When a state restricts access to gender markers on identification documents, or bathroom and facility use, or health care coverage, it can point to safety and tradition. Courts following Hecox would shrug and say they cannot second guess those legislative judgments.
The One Two Punch Against Marriage Equality
multi-cultural group of people sitting at dinner table and joining hands – friendship concept
Paired with Muñoz, though, Hecox becomes much more dangerous in the marriage equality context. Muñoz teaches courts how to redefine and slice up the rights that historically accompanied marriage. Hecox teaches courts to accept biology and tradition as sufficient justification once those rights have been sliced away from the core.
Consider parentage. For centuries, the law has presumed that the husband of a birth mother is the legal father of a child born during the marriage. Post Obergefell decisions extended that presumption to same sex couples, reasoning that marital status could not be treated as less meaningful for them. A future Court armed with Muñoz can recast the problem. The question is not whether same sex couples are entitled to equal marriage, it will say. The question is whether a non-gestational same sex spouse has an independent fundamental right to be recognized as a legal parent without adoption. That formulation will be declared historically novel and therefore not fundamental. Equal protection will then take over. Under a Hecox style regime, the state need only assert an interest in tracking biological maternity and paternity as the default for parentage. That interest is declared rational, and the state is free to deny automatic parentage to queer spouses even though their straight counterparts receive it.
The same pattern works with economic incidents of marriage. Obergefell has often been understood to require that once a couple is married, the government cannot hand them a thinner package of benefits. Under Muñoz, each benefit can be carved off and recategorized. The right to spousal Social Security benefits, the right to file joint returns under state law, the right to share in certain survivor pensions, all become separate liberty claims rather than obvious consequences of marriage. When queer plaintiffs object, the Court can respond that there is no deep historical right to that particular benefit just because one is married. With Hecox at its side, the Court can then uphold schemes that give preferential treatment to heterosexual marriages on the ground that the state has an interest in supporting “biological families” and traditional unions.
Hospital access and medical decision making illustrate another application. Many married couples assume that spouse status will put them at the center of medical choices when their partner is incapacitated. In practice, statutes and hospital policies often treat spouses as default surrogates. If a state or a religiously affiliated health system begins to deny that status to same sex spouses, a Muñoz inspired Court can characterize their objection as a claim to a novel right to act as surrogate decision maker in the absence of a statute. It can refuse to treat that claim as part of the right to marry. A Hecox style equal protection analysis will then bless conscience based carve outs that allow institutions to refuse recognition of queer spouses as surrogates, especially when those carve outs are framed as neutral protections for traditional beliefs about sex and gender.
Solemnization is already a live battlefield. Tennessee now allows judges, clerks, and other officials to decline to perform marriages that conflict with their beliefs. Similar measures are on the horizon elsewhere. A queer couple in a rural county that has effectively gone dark for same sex marriages will say that Obergefell promised them more than a theoretical right written in a case reporter. It promised a real civil marriage process. Under the Muñoz approach, the Court can shrink the question down to whether there is a fundamental right to be married by a particular local official. Finding no such history, it will insist that the right to marry remains intact as long as some path to a license exists somewhere in the state. Equal protection review under Hecox will then defer to the state’s claimed interest in protecting the conscience of officials and respecting traditional views about marriage.
Even the Respect for Marriage Act does not fully prevent this erosion. RFMA requires states and the federal government to recognize marriages that were valid where celebrated, including same sex marriages, but it leaves wide room for religious exemptions and does not force states to issue licenses if Obergefell falls. A Court that has embraced Muñoz can say that recognition for purposes of one federal statute is enough to meet RFMA while still allowing states to carve marriages out of other legal contexts. A Court that has embraced Hecox will be comfortable saying that any uneven treatment is justified by legitimate interests in supporting biological families and traditional unions.
In this combined scenario, the Court never has to write the sentence that everyone is watching for. Obergefell remains on the books. Lawyers and law students will still cite it for the proposition that same sex couples have a right to civil marriage. Clerks’ offices in blue jurisdictions will still conduct weddings with rainbow flags outside the courthouse. Yet in red and purple states, the lived experience of queer families will drift further and further away from what most people understood “marriage equality” to mean. They will have licenses that say “married” at the top and a patchwork of exclusions underneath.
Muñoz alone signals a willingness to separate the symbolic right to marry from the concrete rights that make marriage livable. Hecox, if it comes out at its worst, will supply a jurisprudence that treats biology and tradition as nearly unassailable reasons to disadvantage queer and trans people.
In the end, that is what makes this moment so dangerous. The Court does not have to rip up marriage licenses or announce that queer families are strangers to the law. It only has to drain meaning out of the promises it already made. Muñoz tells lower courts that the rights we once understood as inseparable from marriage can be carved off and dismissed as “novel” requests. Hecox, if it comes out at its worst, tells them that when states target queer and trans people in the name of biology and tradition, they are entitled to almost limitless deference.
For LGBTQ+ people, that combination feels like a slow betrayal. We were told that marriage equality meant belonging in the legal and civic life of this country, not just standing in line at the clerk’s office. If Muñoz and Hecox become the governing logic, we will still have the words, the certificates, the citations to Obergefell, but the security and dignity that were supposed to come with them will be contested at every turn. The fight ahead is not only about preserving a precedent. It is about insisting that our marriages are real, that our families are not experiments, and that equality is more than a technicality the Court can explain away.