Remembering Obergefell in the Wake of Cupriak-Trojan
This post was written by Elizabeth Stuart Perry, Senior Lecturer/Associate Professor at Department of Law at Uppsala University and a Californian attorney. It is the third contribution to the EAPIL on-line symposium on the judgment of the Court of Justice of the European Union in Cupriak Trojan. The previous posts, by Laima Vaige and Alina Tryfonidou, can be found here and here, respectively.
On 25 November 2025, the Court of Justice of the European Union delivered a landmark judgment obliging all EU Member States to recognize same-sex marriages lawfully entered into in another Member State, even if they do not permit such marriages domestically.
This 27-Member-State Union’s constitutional drama may remind private international law experts of another that unfolded a decade ago in the federation of 50 diverse State legal systems known as the United States —also partially fueled by cross-border concerns — which also led to a landmark high court decision that signaled the end of marriage discrimination throughout the (American) Union.
This post revisits that United States Supreme Court decision from ten years ago, Obergefell v. Hodges, and explains its constitutional legal basis, briefly comparing its basis and practical consequences with those of the recent judgment of the Court of Justice.
Obergefell legalized same-sex marriage nationwide by requiring all States to recognize such marriages entered into in other States, very similarly to Cupriak-Trojan, but also to license — within their own jurisdictions, under State law — such marriages. I thus offer an American point of view on the EU’s new “mutual recognition” model, in light of the US “constitutional rights” model.
The US Model: Obergefell v. Hodges
“The Constitution promises liberty to all within its reach…” — Justice Kennedy’s opening.
In Obergefell v. Hodges, the plaintiffs comprised 14 same-sex couples and two widowers whose same-sex marriages, lawfully performed in US States that allowed them, were not recognized by their home States, all of which at the time defined marriage as between a man and a woman.
On June 26, 2015, the US Supreme Court held, by a 5–4 majority, that the Fourteenth Amendment to the US Constitution requires that: (1) States must license marriages between two people of the same sex; and (2) States must recognize same-sex marriages lawfully performed in other States.
Justice Anthony Kennedy, writing for the majority (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), grounded the ruling in fundamental constitutional rights. The Court held that the right to marry is an inherent component of individual liberty protected by the Due Process Clause of the Fourteenth Amendment to the US Constitution, and thus that States denying same-sex couples the right to marry at home in their State or to have their cross-border marriages recognized violate the Equal Protection Clause shielding individuals from State overreach and infringement of their fundamental, constitutionally-guaranteed liberties.
The Fourteenth Amendment: At Obergefell’s Core
An introduction to the Fourteenth Amendment (1868) and its Due Process and Equal Protection Clauses here is warranted, as its clauses are not only the underpinnings of Obergefell but of many constitutionally-protected rights in the United States. Because of these clauses, not only federal but also state actors are obligated to protect the rights and liberties which Americans have enjoyed since the founding of the United States.
One thing to understand is that early American colonies, now known as the States of the Union, did not (and do not today) readily concede power to the federal-level government of limited, enumerated competencies defined in the founding “treaty” known as the US Constitution.
To entice the 13 original American colonies to ratify the Constitution — and thus to compromise their sovereignty to the extent necessary to create a “more perfect Union” where only a loose confederation of independent colonies had existed before — the Bill of Rights to the US Constitution (1789) was adopted, consisting of ten original Amendments assuring rights and liberties to the states and to their people as individuals. One could summarize this to say that rights in the US at the time were mainly negative rights, designed from a fear of overreach at the supra-State (federal) level.
In that context, the Fifth Amendment, ratified (along with the rest) in the year 1791, set boundaries on federal government interference with individual libraries. The Fifth Amendment Due Process Clause reads: “No person shall be… deprived of life, liberty, or property, without due process of law.” As the Supreme Court confirmed in Barron v. Baltimore (1833), US states were free to have their own constitutions and laws, which might — and often did — offer fewer individual protections, but the federal-level government was not.
And then, many decades later, there was a civil war, ultimately ending slavery and preventing a splintering of the young Union. The Fourteenth Amendment (1868) was drafted and ratified in the aftermath of the Civil War, specifically to address the conduct of the former Confederate States. Its architects, not entirely unlike the EU institutions of our era, sought to nationalize a floor of fundamental rights. They drafted the Fourteenth Amendment’s key clauses as near repetitions of the Fifth Amendment’s Due Process Clause, but with a revolutionary change, binding the States: Due Process Clause: “… nor shall any State deprive any person of life, liberty, or property, without due process of law”; Equal Protection Clause: “… nor shall any State deny to any person within its jurisdiction the equal protection of the laws”.
Since the adoption of these clauses — and their becoming applicable to the States through a doctrine called “incorporation” which is reminiscent of direct effect of EU Treaty articles in its piecemeal approach — it became US law that the “liberty” (in the Due Process Clause) protected from US State law deprivation includes most of the fundamental rights enumerated in the Bill of Rights as against the federal government.
Obergefell’s Legal and Social Consequences
In Obergefell, the Court emphasized that marriage represents “one of the vital personal rights essential to the orderly pursuit of happiness” and a union that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family”. The Court rejected arguments that extending marriage to same-sex couples would harm the institution of marriage, pointing out that married same-sex couples pose no risk to themselves or third parties.
By finding that the right to marry is protected from undue state law interference, the Court made clear that fundamental rights cannot constitutionally be subject to populist votes or majoritarian timetables. The rule of law, not majoritarian state legislatures, must protect them.
The Obergefell ruling had sweeping consequences: it generalized marriage equality across all 50 US states and required uniform recognition of same-sex marriages, relying on the supremacy of the US Constitution over state law, and of the right of the US Supreme Court to interpret it. Same-sex US couples gained access to the full array of marital rights: adoption and parental rights, inheritance, spousal benefits (e.g., health care, social security), tax treatment, next-of-kin status, and more.
By rooting the decision in the Fourteenth Amendment’s liberty and equality guarantees, the Court framed marriage equality not as a political preference but as a constitutional right tied to personal dignity, autonomy, and equality under law. This reasoning truly exemplifies the fundamental underpinnings of US law: if a state, at any level, does not have a strong and legitimate-enough interest to protect given its obligations to the people, it may not interfere with personal rights and liberties. The strongest personal rights require the strongest state interests to justify an interference, or a law that amounts to an interference cannot stand.
Comparing Models: Constitutional Rights vs. Mutual Recognition
The US perspective focuses on negative rights and has a relatively suspicious view of subjecting one’s liberty to the social contract that is living under the rule of law. From the US perspective, the topic of this post is a story of two legal systems built on a compromise between sovereign States and supranational institutions, where competence for family law — and all else not enumerated in the founding constitutional law — remains largely at the more local level, and where protecting minority rights to equal treatment by the state is in tension with local-level political will to retain legal distinctions that (at the supra level) are now deemed unjustified discrimination.
The decision of the Court of Justice relies on EU law’s conflict-of-laws / recognition regime, grounded in internal market freedoms and human rights under the Charter. It protects the liberty of EU citizens to move freely, with family, and not to suffer discrimination when doing so, but within the confines of EU competences.
The US decision relies on the State’s lack of a strong-enough justification to infringe the constitutionally-protected liberty to choose one’s partner, especially where equality before the law for those belonging to minority groups is threatened by laws allowing some but not others to marry. This is possible because the states have ratified constitutional laws that guarantee individual liberty and non-discrimination in such a way that the federal courts can rule unconstitutional even state-level laws infringing them. It raises a question I can pose to you for debate in the comments: in what ways might EU law one day justify a more comprehensive guarantee of EU-wide marriage equality?
The 2025 judgment of the Court of Justice requires only recognition of already valid same-sex marriages from other EU states, but it does provide a functional equivalent to the US rule, a PIL solution for same-sex couples, albeit by creating a “two-tier” reality difficult to justify through the constitutional-rights, American lens, but admittedly more respectful of the remaining political divides in the (younger) Union.