Now that the Supreme Court has overturned Roe v. Wade, sending abortion policy back to the states, could the court do the same thing with same-sex marriage by overturning the 2015 ruling in Obergefell v. Hodges?
One justice in the majority that overturned Roe, Clarence Thomas, wrote in a concurring opinion that the court “should reconsider” Obergefell, calling it one of the court’s “demonstrably erroneous decisions.” Obergefell has been in place for a far shorter time than Roe was when it was overturned.
Some Republicans have recently said that such a reversal might be possible.
On July 16, Sen. Ted Cruz, R-Texas, said on his podcast that “Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history. Marriage was always an issue that was left to the states.” Cruz added, “I think that decision was clearly wrong when it was decided. It was the court overreaching.”
Other Republican senators have raised this prospect, including Josh Hawley of Missouri, who has called Obergefell “wrongly decided.” Hawley added that Obergefell was “settled law” and that he would be “shocked” to see it overturned.
Meanwhile, the Democratic-controlled House passed the Respect for Marriage Act, which would require that all states honor marriages, including same-sex marriages, that were legally valid in the state where they were granted. Supporters said that the law was necessary to preempt the possible overturning of Obergefell, although the measure is considered unlikely to secure the required 60 votes in the Senate.
Here, we’ll take a closer look at what overturning Obergefell could mean for states and married couples.
Where would same-sex marriage become illegal if Obergefell were overturned?
Prior to Obergefell, some states explicitly legalized same-sex marriage, but most had some sort of ban in place, either through the state constitution, state law, or both.
Unless states change what’s on their books, same-sex marriage would become illegal in at least 25 states if Obergefell were to be overturned, and it would likely become illegal in seven others, according to an analysis by the nonpartisan National Conference of State Legislatures requested by PolitiFact for this article.
These 25 states have a mixture of constitutional provisions and ordinary statutes in place that would bar same-sex marriages if the national protection of the Obergefell decision were to go away.
Some of the 25 states with clear provisions on the books that would ban same-sex marriage are solidly conservative, including Alabama, Arkansas, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, and Tennessee.
But other states that have bans have become more politically competitive since such provisions were added, including Arizona, Colorado, Georgia, Michigan, North Carolina, and Texas. Because of higher-than-average rates of support for same-sex marriage in these states, legislators could take action to preserve same-sex marriage.
Support for same-sex marriage in these states ranges from 60% to 77%, according to a 2021 survey by the Public Religion Research Institute. The national average was 68%, PRRI found.
Three other states that NCSL says would likely see previous bans go back into effect — Pennsylvania, Oregon, and Virginia — all have levels of support for same-sex marriage between 69% and 73%.
In only about one-third of states would same-sex marriage likely survive the overturning of Obergefell, at least initially, according to the NCSL analysis.
All of these states generally lean Democratic on a statewide basis: Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington state, plus the District of Columbia.
Two other solidly blue states — California and Hawaii — would be likely to see same-sex marriage continue after Obergefell, despite some contrary language in their state constitutions, NCSL concluded.
(PolitiFact)
What would it mean to have same-sex marriage overturned in a state? No one knows.
“I don’t think that existing marriages would be annulled, but I don’t know,” said Kermit Roosevelt, a law professor at the University of Pennsylvania. “I’m not sure there’s a historical precedent for how existing marriages get treated in such cases.”
At the very least, states “would be able, if they want, to bar people from entering into new same-sex marriages,” even if existing marriages were grandfathered, said Ilya Somin, a George Mason University law professor. “They could also give same-sex marriages fewer or different benefits from those granted to opposite-sex marriages.”
For instance, same-sex couples might be denied rights to property and inheritance, adoption, and advance health directives, said University of Richmond law professor Carl Tobias.
The potential for legal chaos might be one issue that argues against the Supreme Court taking the leap to overturn Obergefell, legal experts said.
“I believe the justices will perceive the disruption, and the potential undoing of settled expectations and arrangements that would attend to overruling Obergefell, too damaging to the nation to warrant turning back the clock and undoing the constitutional right to same-sex marriage,” said Rodney A. Smolla, the president of Vermont Law School.
Legal experts added that acceptance of same-sex marriage has grown steadily over time, adding to the risk of overturning Obergefell.
“I don’t think it’s very likely, but no one really knows where this train stops next,” said William & Mary law professor Timothy Zick.
Is the Supreme Court likely to overturn Obergefell?
While many Americans were surprised until recently to see the Supreme Court overturn Roe, experts in constitutional law agreed that the overturning of Roe will not inevitably lead to the overturning of Obergefell.
The main reason is mathematical: In expressing enthusiasm for overturning Obergefell, Thomas was actually an outlier on the court.
The majority opinion, written by Justice Samuel Alito, took pains to note that the majority supporting the overturning of Roe does not have other rulings, including Obergefell, in their sights. The majority opinion asserted that same-sex marriage is different from abortion because it “does not destroy a ‘potential life.’”
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Justice Brett Kavanaugh made the same point in his concurring opinion, writing of Obergefell and similar precedents, “I emphasize what the court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
Even though Thomas indicated a desire to overturn Obergefell, “notably, no one else joined it,” Somin said. “It’s highly unlikely” that Thomas could bring four other justices to his side, he said.
In his podcast, Cruz acknowledged such practical obstacles. Cruz said that same-sex marriage lacks a life-and-death dimension, and reversing the 2015 ruling would be “more than a little chaotic.”
This article was originally published by PolitiFact, which is part of the Poynter Institute. It is republished here with permission. See the sources here and more of their fact checks here.
