Without Obergefell, Most States Would Have Same-Sex Marriage Bans

This story was originally posted by Stateline, an initiative of the Pew Charitable Trusts. 

The U.S. Supreme Court legalized same-sex marriage in 2015, but in most states, laws or constitutional amendments would revive the prohibition if the high court decides, as it did with abortion, that such unions are not a constitutionally protected right.

Thirty-five states ban same-sex marriage in their constitutions, state law, or both, according to the National Conference of State Legislatures and Stateline research.

All were invalidated in 2015 by the Obergefell v. Hodges ruling. But should the now-more-conservative U.S. Supreme Court overturn the right to same-sex marriages, those state laws and constitutional amendments would kick in.

“These constitutional amendments are still on the books and would likely be put in place,” said Jason Pierceson, a political science professor at the University of Illinois, Springfield and author of “Same-Sex Marriage in the United States: The Road to the Supreme Court and Beyond.”

“Most of them,” he said, “would arguably be in effect if the court overturns Obergefell.”

And it’s likely that the abortion decision opens the door to challenges, Pierceson said.

Justice Clarence Thomas, in a concurring opinion on the Dobbs v. Jackson Women’s Health Organization abortion case, indicated that is exactly the path the court should follow. His opinion alarmed many observers, despite majority opinion writer Justice Samuel Alito’s assertion that the decision overturning abortion rights has nothing to do with other rulings on same-sex marriage, contraception and sexual relations between consenting adults.

A ruling overturning Obergefell wouldn’t, however, reverse state laws allowing same-sex marriage: Some states had legalized the unions prior to 2015. They include Massachusetts, the first to do so in 2003, as well as Connecticut, Hawaii, Maine, New Hampshire, New York, Vermont and Washington.

Same-sex marriages in those states would likely remain legal, just as abortion remains legal in the states where laws expressly permit it.

Codifying Equality

In Utah, one of the states that has both a constitutional amendment and a statute outlawing same-sex marriage, state Sen. Derek Kitchen, a Democrat, is trying to codify marriage equality. He has “opened” a bill on the subject. (In Utah, opening a bill means he has formally expressed his intent to introduce the legislation and is drafting the bill and soliciting cosponsors.)

Kitchen has a long history with the matter: He won a suit against Utah in 2013, when he and others sued to be able to marry their same-sex partners.

Kitchen said he has support for his coming bill in both parties, but said Senate President Stuart Adams, a Republican, is standing in his way. Adams said at a news conference in the wake of the Roe v. Wade decision that he would be willing to have Utah band with other states to bring a case against same-sex marriage to the U.S. Supreme Court.

Reached in Utah by phone, Adams denied he is an obstacle to Kitchen’s pending bill. However, he noted that the legislative session in Utah next year is very short (January to March), so, he said, this is not the right time to deal with same-sex marriage when he is still sorting out the implications of the abortion ruling.

He added that it is “premature” to say what his stance would be. However, he said if the Supreme Court were to look at overturning the right to same-sex marriage, “I believe states are in the best spot to handle that decision.”

“Why would I start moving down into that without public input and public discussion? I’m not going to go there right now,” he said. “Anybody asks me, I have a long history in believing in states’ rights and the 10th Amendment.”

He also pointed to two bills he championed that went into effect in 2015 that attempt to balance religious freedom with rights for LGBTQ residents in Utah. The bills protect against discrimination in housing and employment but also allow businesses to opt out of providing some services to certain classes of people if the owners believe conducting such business would go against their faith.

Defining Marriage

In Texas last October, state Rep. James White, a Republican, and legislative leaders wrote a letter to GOP Attorney General Ken Paxton arguing that despite the Obergefell decisions, individuals in Texas don’t have to abide by it because the state constitution defines marriage as being between a man and a woman. They asked him to issue an opinion on their argument.

Paxton, however, declined to act. In a letter to White in March, he responded that the U.S. Supreme Court has a case from Colorado pending that could answer that question better. The high court in February agreed to hear arguments in that case, which involves a web designer who did not want to create a site for same-sex weddings.

White did not respond to requests for comment from Stateline on the same-sex marriage issue now that the U.S. Supreme Court has overturned Roe v. Wade.

Some states have moved proactively to get rid of existing bans on gay marriage.

Virginia repealed a same-sex marriage ban in 2020, when Democrats took over the state government. Nevada voters approved a referendum that year to get rid of a constitutional amendment prohibiting same-sex marriage.

New Jersey Democratic Gov. Phil Murphy signed a law in January that provides that all laws having to do with marriage and civil unions are considered gender neutral.

Yet LGBTQ rights advocates are concerned that the spate of state bills placing new restrictions on transgender people could pave the way for the prohibition of same-sex marriage in many states, if the Supreme Court overturns Obergefell.

At least 30 states have considered transgender-related bills this year, most of them having to do with barring transgender girls from participating in girls sports at the high school or college levels, according to Stateline research, but others related to gender-confirming health care.

Vivian Topping, director of advocacy and civic engagement at the Equality Federation, an LGBTQ rights group, said in an interview that despite Alito’s assurance that overturning Roe does not jeopardize previous decisions on marriage and contraception, “it’s hard to take that on its face.”

“Whether it’s names on a marriage certificate or allowing businesses not to participate in LGBTQ+ weddings, our opposition is already doing the work to try to chip away at marriage equality,” Topping said.

She also pointed to bills that would allow adoption agencies to discriminate against couples that don’t meet their religious or sexual criteria and the transgender youth bills. “If they start to attack marriage, that would be an even less popular thing than attacking transgender youth.”