In contemporary U.S politics, two cases stand out as landmark cases in terms of fundamental rights and equality: Roe v. Wade and Obergefell v. Hodges.

Roe v. Wade, the first of these cases, was ruled on in 1973. Norma McCorvey, who went by the alias Jane Roe, argued that she had a fundamental right to privacy that the Texas laws had been ignoring by not letting her make a personal decision about her own body, taking away that freedom. She filed the case against Henry Wade, the district attorney who represented the state in this matter. When the case made it to the Supreme Court, they ruled in favor of it 7-2, describing that the right to privacy was a form of liberty protected by the Fourteenth Amendment, and that right "is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy." This was based off of the due process clause of the Fourteenth Amendment.

Obergefell v. Hodges is the second of these cases, and was ruled on in 2015. It was a series of lawsuits from gay couples in various states who wanted to challenge bans on gay marriage. James Obergefell was married to his partner John Arthur, and after Arthur's death, wanted his marriage to be recognized on Arthur's death certificate. They were legally married in Maryland, but Ohio refused to recognize it, filing the case against Richard Hodges. Hodges, as Ohio's health director, was the defendant although only recently appointed to his position, and supported marriage equality himself. Again the case made its way to the Supreme Court, and the court ruled in favor of it 5-4. They determined that the right to marry "is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses", again citing the Fourteenth Amendment.

Both Roe v. Wade and Obergefell v. Hodges have been landmark cases: the former for abortion, the latter for gay marriage. And both have used the principle of substantive due process. Substantive due process asks if depriving a fundamental right from a person has a compelling justification, if it is substantive. It's based off of this part of the Fourteenth Amendment that reads, "nor shall any State deprive any person of life, liberty, or property, without due process of law", known as the Due Process Clause. Substantive due process is used to protect fundamental rights by setting the bar for depriving them high. The notion has history, but Roe certainly is the most major case that uses it, and depends uniquely on it.

Obergefell v. Hodges has two key differences to Roe v. Wade, though. Firstly, it also uses the Equal Protection Clause to justify it, which reads, "nor deny to any person within its jurisdiction the equal protection of the laws." And secondly, it was codified into law with the Respect for Marriage Act (2022), passed during the Biden administration. Although it also relies partly on substantive due process, it doesn't exclusively rely on it.

Still, substantive due process is on shaky grounds. If we read that section again, it focuses on "without due process of law", or just that the government has to follow its own laws when depriving a person of a fundamental right. And it's controversial, since it gives justices the ability to designate what fundamental rights are. Some even call it undemocratic by allowing them to put their own preferences above lawmakers.

The shaky footing of substantive due process came under fire with Dobbs. v Jackson., as the Jackson Women's Health Organization sued the organization believing Mississippi's Gestational Age Act to be unconstitutional, and wanting to rely on the precedent of Roe and Casey (another case that built on Roe.) The Supreme Court, this time stacked with justices placed by Trump, went against substantive due process, saying that no such right to abortion was "implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment." Even Sarah Weddington herself, Roe's lawyer, thought the argument might have been on shaky ground, and that the Equal Protection Clause would have been a better fit for the right of abortion... but the Court addressed that too, saying that "the 'goal of preventing abortion' does not constitute 'invidiously discriminatory aminus' against women", or more simply, that it isn't unjustly prejudiced towards women.

In Dobbs v. Jackson, justices had varying opinions on other cases using substantive due process. Justice Kavanaugh writes that overruling Roe does not mean overruling other precedents "such as contraception and marriage", including Obergefell v. Hodges. However, Justice Thomas had a different opinion, saying that in the future "we should reconsider all of this Court’s substantive due process precedents", including Obergefell, calling substantive due process "demonstrably erroneous." The fact only six months later, the Respect for Marriage Act was passed, isn't incidental: it's clear that the Democrats wanted to be extra careful by solidifying rights through law instead of the courts.

So, could Obergefell be overturned next? Although the same substantive due process argument used in Obergefell could be struck down, the Equal Protection Clause pretty firmly defends it. Discrimination on the basis of sex or race is a much clearer violation of that clause than it was for Roe. And more-so, the Respect for Marriage Act was passed into law, forcing states to recognize a marriage passed in any other state, practically codifying Obergefell by making sure all of the marriages stay valid if it's overturned, and making it so you can still get married in blue states.

Still, the conservative Supreme Court has shown its tolerance to bend and break the law before, especially recently with Noem v. Perdomo. The dissenting opinion there says it better than I ever could, that the four factors of "apparent race or ethnicity", "whether they spoke Spanish or English with an accent", "the type of location they were found" and "the type of job they appeared to work" were not sufficient enough to constitute reasonable suspicion, and that this was basically a form of racial profiling. So maybe the legal argument isn't so much a wall, but a means that can be bent to give Trump what he wants.

How then could they challenge Obergefell? Kim Davis, a former clerk from Kentucky who refused to issue marriage licenses to gay couples on religious grounds was sued for it. Her case is being appealed up to the Supreme Court, but it's not the best to use against Obergefell because it's not about equality, but about damages. It's an ineffective case to use to turn Obergefell, right? Still, she's clearly intending to use it to challenge Obergefell, and as it is now, it's a risk worth considering.

Because, really now? When has the rule of law ever stopped them? Has it stopped them from throwing children into unmarked vehicles while wearing full body masks, detaining them, and then deporting them? Has it stopped them from saying that transgender people are "violently ill and should be in a straitjacket with a hard steel lock on it," or has it only empowered them more? Americans are less trustful than ever of their government, and have only been growing more dubious of the courts. If they do overrule Obergefell, what then? Have they given the go-ahead to every red state and every local official to do whatever they want, knowing they can always fall back on the courts to bring up "states' rights" as the ultimate defense of cruelty? Because morality is dependent on which state you live in.

What happens if they do make a play at Obergefell? And what will happen if this country loses faith in the one branch of government meant to hold us accountable for our crimes? If the day comes when Americans are unable to turn a blind eye to the blatant abuse of our court system, and can't stand the corruption anymore... then what's next?