Asked by amora
What Will Happen to Same-Sex Marriage Around the Country if Obergefell Falls
December 2022
When the Supreme Court overturned the landmark abortion case Roe v. Wade, 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 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.
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.
1. Why is the public afraid same-sex marriage will be overturned?
2. What is the “Respect for Marriage Act” ?
3. What are the pros and cons to the “Respect for Marriage Act” in the case same-sex marriage gets overturned?
All Answers 1
Answered by
GPT-5 mini
AI
1) Why is the public afraid same-sex marriage will be overturned?
- The Supreme Court signaled it might revisit Obergefell. After Dobbs (the decision that overturned Roe), Justice Clarence Thomas’s concurrence explicitly listed Obergefell as a case to reconsider. That sent a clear signal that some justices are open to reversing precedent.
- The Court’s willingness to overturn a long-standing constitutional precedent in Dobbs made people worry other precedents (including Obergefell) could be next.
- If Obergefell were overturned, authority over marriage rules would largely return to the states. About 30–35 states still have dormant statutory or constitutional bans on same‑sex marriage that could be reactivated, meaning access would vary by geography.
- The Respect for Marriage Act (RFMA) reduces some risk but does not require states to issue same‑sex marriage licenses; it only requires recognition of marriages validly performed elsewhere. That limitation means couples in some states could lose local access to marriage even if their unions are recognized elsewhere—fueling fear about unequal access and legal uncertainty.
- In short: a combination of a changed Court, explicit invitations to revisit Obergefell, preexisting state bans, and limits of the federal fix make the public worried.
2) What is the Respect for Marriage Act?
- A federal law signed in December 2022 that does three main things:
1. Requires the federal government to recognize marriages that are valid under state law regardless of the couple’s sex, race, ethnicity, or national origin (this effectively ensures federal benefits for marriages validly performed).
2. Requires each state to recognize marriages that were validly performed in other states — i.e., if a couple was validly married in State A, State B must treat that marriage as valid for state law purposes.
3. Repeals the remaining parts of the old Defense of Marriage Act (DOMA) that allowed non‑recognition and includes express protections for religious organizations and individuals to decline to provide certain goods or services in line with sincere religious beliefs.
- Important limits: RFMA does not force a state to issue a marriage license to a same‑sex couple if that state’s law forbids such marriages; it is a statute (Congress can amend or repeal it), not a constitutional ruling; and it contains religious‑liberty provisions that allow some refusals of service.
3) Pros and cons of the Respect for Marriage Act if Obergefell is overturned
Pros
- Protects existing marriages: Couples married where it is legal would keep federal recognition and the federal benefits that come with marriage (Social Security spousal benefits, federal tax treatment, immigration sponsorship, federal employee benefits, etc.).
- Interstate recognition: People who marry in a state that permits same‑sex marriage would have that marriage recognized in other states, reducing some legal chaos when couples move.
- Nationwide baseline: RFMA creates a federal floor of recognition that prevents immediate nationwide erasure of same‑sex and interracial marriages.
- Religious‑liberty accommodations: For those concerned about compelled participation, the law explicitly protects certain religious actors, which helped build broader political support for the bill.
Cons / Limitations
- Does not require states to issue marriage licenses: Couples living in states that prohibit same‑sex marriage might still have to travel to marry. That creates geographic and economic inequity (poorer couples less able to travel).
- Statutory, not constitutional: RFMA can be changed or repealed by a future Congress, and it offers less permanence and protection than a Supreme Court constitutional ruling like Obergefell.
- Enforcement and litigation risks: States or private actors might test the limits of RFMA (e.g., disputes about scope of recognition, parental rights, state procedural rules). That could produce more court battles and uncertainty.
- Religious‑liberty carveouts can enable refusals: The law’s protections for religious organizations and some individuals mean some vendors, officials, or institutions could lawfully refuse services to same‑sex couples, leading to practical difficulties and discrimination in areas like venues, licenses, or adoption services.
- State‑level consequences remain: Other state laws (on parental rights, adoption, hospital visitation, probate, etc.) can still be structured in ways that disadvantage same‑sex couples even when their marriages are nominally recognized, so full equality in daily life isn’t guaranteed by federal recognition alone.
Bottom line: RFMA provides an important and immediate backstop that protects recognition and federal benefits for marriages validly performed, reducing the worst immediate harms if Obergefell were overturned. But it does not restore the uniform, constitutional right to marry everywhere: access to marriage licenses, long‑term permanence, and protection from state‑level discrimination remain vulnerable.
- The Supreme Court signaled it might revisit Obergefell. After Dobbs (the decision that overturned Roe), Justice Clarence Thomas’s concurrence explicitly listed Obergefell as a case to reconsider. That sent a clear signal that some justices are open to reversing precedent.
- The Court’s willingness to overturn a long-standing constitutional precedent in Dobbs made people worry other precedents (including Obergefell) could be next.
- If Obergefell were overturned, authority over marriage rules would largely return to the states. About 30–35 states still have dormant statutory or constitutional bans on same‑sex marriage that could be reactivated, meaning access would vary by geography.
- The Respect for Marriage Act (RFMA) reduces some risk but does not require states to issue same‑sex marriage licenses; it only requires recognition of marriages validly performed elsewhere. That limitation means couples in some states could lose local access to marriage even if their unions are recognized elsewhere—fueling fear about unequal access and legal uncertainty.
- In short: a combination of a changed Court, explicit invitations to revisit Obergefell, preexisting state bans, and limits of the federal fix make the public worried.
2) What is the Respect for Marriage Act?
- A federal law signed in December 2022 that does three main things:
1. Requires the federal government to recognize marriages that are valid under state law regardless of the couple’s sex, race, ethnicity, or national origin (this effectively ensures federal benefits for marriages validly performed).
2. Requires each state to recognize marriages that were validly performed in other states — i.e., if a couple was validly married in State A, State B must treat that marriage as valid for state law purposes.
3. Repeals the remaining parts of the old Defense of Marriage Act (DOMA) that allowed non‑recognition and includes express protections for religious organizations and individuals to decline to provide certain goods or services in line with sincere religious beliefs.
- Important limits: RFMA does not force a state to issue a marriage license to a same‑sex couple if that state’s law forbids such marriages; it is a statute (Congress can amend or repeal it), not a constitutional ruling; and it contains religious‑liberty provisions that allow some refusals of service.
3) Pros and cons of the Respect for Marriage Act if Obergefell is overturned
Pros
- Protects existing marriages: Couples married where it is legal would keep federal recognition and the federal benefits that come with marriage (Social Security spousal benefits, federal tax treatment, immigration sponsorship, federal employee benefits, etc.).
- Interstate recognition: People who marry in a state that permits same‑sex marriage would have that marriage recognized in other states, reducing some legal chaos when couples move.
- Nationwide baseline: RFMA creates a federal floor of recognition that prevents immediate nationwide erasure of same‑sex and interracial marriages.
- Religious‑liberty accommodations: For those concerned about compelled participation, the law explicitly protects certain religious actors, which helped build broader political support for the bill.
Cons / Limitations
- Does not require states to issue marriage licenses: Couples living in states that prohibit same‑sex marriage might still have to travel to marry. That creates geographic and economic inequity (poorer couples less able to travel).
- Statutory, not constitutional: RFMA can be changed or repealed by a future Congress, and it offers less permanence and protection than a Supreme Court constitutional ruling like Obergefell.
- Enforcement and litigation risks: States or private actors might test the limits of RFMA (e.g., disputes about scope of recognition, parental rights, state procedural rules). That could produce more court battles and uncertainty.
- Religious‑liberty carveouts can enable refusals: The law’s protections for religious organizations and some individuals mean some vendors, officials, or institutions could lawfully refuse services to same‑sex couples, leading to practical difficulties and discrimination in areas like venues, licenses, or adoption services.
- State‑level consequences remain: Other state laws (on parental rights, adoption, hospital visitation, probate, etc.) can still be structured in ways that disadvantage same‑sex couples even when their marriages are nominally recognized, so full equality in daily life isn’t guaranteed by federal recognition alone.
Bottom line: RFMA provides an important and immediate backstop that protects recognition and federal benefits for marriages validly performed, reducing the worst immediate harms if Obergefell were overturned. But it does not restore the uniform, constitutional right to marry everywhere: access to marriage licenses, long‑term permanence, and protection from state‑level discrimination remain vulnerable.
Submit Your Answer
We prioritize human answers over AI answers.
If you are human, and you can answer this question, please submit your answer.