What your state constitution says about same-sex marriage

In a theoretical post-Obergefell world, power over whether to recognize same-sex marriages would be returned to the states – many of which still have same-sex marriage bans on the books.

by Brooke Migdon | Jul. 20, 2022

With the U.S. Capitol in the background, a person waves a rainbow flag as they participant in a rally in support of the LGBTQIA+ community at Freedom Plaza, Saturday, June 12, 2021, in Washington. (AP Photo/Jose Luis Magana, File)

Story at a glance

Thirty-five states have statutes or constitutional amendments in place prohibiting same-sex marriage.

State-level efforts to repeal such measures have seen limited success. On Tuesday, House lawmakers passed legislation that would require states to legally recognize same-sex marriages if those unions are valid in the states in which they were performed.

If the Supreme Court were to overturn Obergefell v. Hodges, the landmark 2015 ruling that legalized same-sex marriage nationwide, state-level bans on same-sex marriage could take effect immediately, although not all of them are enforceable.

Statutes or constitutional amendments prohibiting same-sex marriage remain on the books in more than 30 states, threatening marriage equality in over 60 percent of the nation should the Supreme Court overturn Obergefell v. Hodges, the landmark 2015 ruling that legalized same-sex marriage in all 50 states.

In a theoretical post-Obergefell world, power over whether to recognize same-sex marriages would be returned to the states. For an estimated 205 million Americans, that could mean living in a place where those unions are no longer legal, according to the Democratic Legislative Campaign Committee.

Efforts to repeal state-level bans have in the recent past been met with some resistance, despite record-high support for marriage equality.

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In February, Virginia lawmakers defeated a measure that would have allowed voters to decide whether to remove language from the state’s constitution defining marriage as a union between one man and one woman. When a similar ballot measure was presented to voters in Nevada in 2020, the state became the first in the nation to recognize marriages between couples “regardless of gender” in its constitution.

Even without pushback from lawmakers or voters, avenues to alter a state’s constitution are often lengthy and multifaceted.

“Generally, it’s an arduous process that requires both the government and the people,” Naomi Goldberg, the LGBTQ program director and deputy director of the Movement Advancement Project, told Changing America.

On Tuesday, the House of Representatives passed legislation that would require states to legally recognize same-sex marriages if those unions are valid in the states in which they were performed. The measure would also codify Obergefell and repeal the Defense of Marriage Act (DOMA), the 1996 law that for federal purposes defines marriage as a union between one man and one woman.

The bill now heads to the Senate for consideration.

Lawmakers this week said the legislation is a direct response to a suggestion from Supreme Court Justice Clarence Thomas last month that landmark Supreme Court decisions on same-sex marriage, sex between gay couples and the right to contraception should be revisited following the court’s reversal of Roe v. Wade, which had protected the constitutional right to an abortion.

Thomas, along with fellow conservative Supreme Court Justice Samuel Alito, in 2020 criticized the court’s ruling in Obergefell, asserting that the decision has had “ruinous consequences for religious liberty.”

In the wake of the court’s abortion ruling and Thomas’ opinion, married same-sex couples across the country have said they are uncertain whether their unions will continue to be legally recognized in the states in which they live.

Should Obergefell be overturned, state statutes or constitutional amendments prohibiting same-sex marriage could take effect immediately, with no further legislative or executive action needed to certify them. (Exceptions include California, Iowa and Hawaii, where same-sex marriage bans are not enforceable).

According to legal experts, reversing marriage equality is not something that can happen overnight. A lawsuit would first need to be filed and brought to a court of appeal before potentially making its way to the Supreme Court — a notoriously lengthy process.

“It’s important for people to think about, but it is not an immediate risk,” Jon Davidson, who served as co-counsel on the Obergefell case, told Changing America.

“It should not be assumed that just because Roe was overturned, Obergefell is in danger,” said Davidson, now a senior staff attorney with the American Civil Liberties Union (ACLU) LGBTQ & HIV Project.

Even if Obergefell did fall, it’s unlikely that the decision would affect the unions of already-married couples, Davidson said, and affected couples may sue for sex discrimination, which the Supreme Court in earlier decisions has said includes discrimination based on sexual orientation and gender identity.

But after reversing nearly 50 years of precedent in striking down Roe, it’s possible that the court will choose to reinterpret the context of prior rulings.

According to Davidson, it’s also worth noting that Thomas is thus far the only Supreme Court Justice to suggest revisiting marriage equality. Alito, writing for the majority last month, said no other cases would be impacted by the court’s abortion ruling.

But “who knows what could happen?,” Davidson said. “We’re in a situation where the Supreme Court can’t be relied on for much of anything.”