When the Supreme Court overturned the landmark abortion case Roe v. Wade this summer, Justice Clarence Thomas’s concurring opinion named several other cases he wants the high court to reconsider, including Obergefell v. Hodges, the 2015 case that made same-sex marriage legal in every U.S. state.
The opinion galvanized members of the LGBTQ community, advocates, and lawmakers in both parties to create federal legislation with an extra layer of protection for marriage rights. This week, President Joe Biden signed the Respect for Marriage Act into law.
But if the Supreme Court does decide to overturn Obergefell, marriage rights could still be rolled back around the country—the new law doesn’t prevent states from refusing to license the unions.
The Respect for Marriage Act requires that all states recognize same-sex unions, but doesn’t require states to issue them. In the seven years since Obergefell was decided, same-sex marriage bans in 35 states across the country have lain dormant. But should Obergefell be overturned, they would again be activated. Similar to what happened to abortion rights after the Supreme Court decided Dobbs v. Jackson Women’s Health Organization in June and overturned Roe, people’s access to same-sex marriage licenses would depend on geography.
“It’s going to be chaotic, and each state is going to have to figure out whether they now have a law on the books that is enforceable,” says Leonore Carpenter, associate professor of law at Rutgers University.
The 35 states that currently have inactive bans on same-sex marriage are largely concentrated in the American South, from Texas to Florida, according to an analysis by the Movement Advancement Project, an independent think tank that advocates for equality by conducting research. Some Midwestern states like Ohio, Michigan, and Wisconsin also ban same-sex marriages. In the West, states from Arizona to Montana ban the unions.
If the Supreme Court were to overturn Obergefell, the new federal law guarantees that a same-sex couple who was married in Illinois, for example, would still be recognized as married if they moved to Virginia, which has a ban on same-sex marriage that could be reactivated. But a same-sex couple wishing to be married in Virginia might have to travel out of state to get their marriage license. The Respect for Marriage Act also provides similar protections for interracial marriages.
The dynamic could create a challenge for couples who want to get married but can’t afford to travel to another state for the license. That would exclude such couples from accessing the benefits that come with marriage, including inheritance, tax benefits, and the ability to make health care decisions for a spouse who is unable to make them themselves. “You will start to see a real economic justice problem,” Carpenter says.
Bryan Wilson, who co-founded the Pride Center West Texas in Odessa, Texas, says the Respect for Marriage Act is a win for him and his husband, and other LGBTQ couples who are already married, but worries it doesn’t do enough for young or unmarried people in states like Texas. “I have youth who go, ‘Well, if on the off chance I ever want to get married in about six, seven years, 10 years, 15 years, I’m probably not going to be able to do it here anyway, so I hope I’ve moved to California, New York, or Washington,’” Wilson says.
“There will be enough respect for marriage when every state in the union, every territory, has legalized it as well as enshrined it in their constitution, that same-sex marriage is allowed,” Wilson adds.
For LGBTQ people living in states with dormant bans on the books who are vulnerable to financial insecurity, face discrimination, or struggle with their mental health, overruling Obergefell could cause a different kind of fallout, experts warn. “It would be a deep psychological and emotional blow to a lot of gay, lesbian, and bisexual people to be told that even if their state has to recognize a marriage formed out of the state, that their state nonetheless disapproves of their relationship and effectively considers them second class citizens,” says Michael Boucai, a law professor at the University of Buffalo.
But Boucai is skeptical about whether Obergefell is truly in jeopardy. Roe v. Wade was decided by the Supreme Court based on an interpretation of the 14th Amendment and the word “liberty” in that amendment, he says. The same interpretation was applied when deciding Obergefell, but the Justices more heavily weighed the amendment’s equal protection clause.
“Unlike Roe v. Wade, Obergefell wasn’t simply decided on liberty grounds, it was also decided on equality grounds,” Boucai says. “Though I think that there’s every reason to be worried, and it’s good to err on the side of caution, and I’m glad that the Democrats were able to score this political win with Republican support, I would not be panicking right now about the prospect of Obergefell being overruled.”