What is going on with marriage equality and should I be worried?

Marriage Equality is a topic of much discussion again. Kim Davis, the former Kentucky county clerk who was jailed for six days in 2015 for refusing to issue a marriage license to a gay couple, filed a petition for writ of certiorari to the United States Supreme Court. That means she’s asking the Supreme Court to hear her case and to decide whether her First Amendment right to freedom of religion was infringed upon by having to issue marriage licenses to same-sex couples. More pointedly, she’s also arguing that the Supreme Court’s decision in Obergefell v. Hodges (the case that extended marriage rights to same-sex couples nationwide) was wrong.

What does all of this new legal maneuvering mean for same-sex couples who are already married or who want to get married?

To answer that question, we have to start with how we got here.

The Supreme Court has significantly expanded marriage rights twice; first, in 1967, the Court legalized interracial marriages in the case Loving v. Virginia. Next, in 2015, the Court legalized same-sex marriage nationwide in Obergefell v. Hodges.

However, in June 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overturning its own prior decision in Roe v. Wade and eliminating the constitutional right to abortion. This case, Dobbs, was the first time the Supreme Court eliminated a major, prior legal precedent. In his concurrence to the Dobbs decision, Justice Clarence Thomas suggested that the Supreme Court should also reconsider other legal precedents, including the nationwide right to same-sex marriage established in Obergefell.

There was a concern following the decision in Dobbs that if Obergefell were overturned, federal recognition of same-sex marriages would be eliminated. Congress quickly took action to pass the Respect for Marriage Act (FRMA) to create a legal safeguard for same-sex marriage rights under federal law, even if the Supreme Court were to one day overturn Obergefell.

What did RFMA do and what does it mean?

• It repealed the Defense of Marriage Act (DOMA) from 1996 which had defined marriage as between a man and a woman and allowed states to refuse to recognize same-sex marriages from other states.
• It requires the federal government to recognize any marriage that is valid in the state (or territory) where it was performed, regardless of the couple’s sex, race, ethnicity, or national origin.
• It requires all states to recognize valid marriages performed in other states, even if their own laws would not allow such marriages. It explicitly applies to same-sex and interracial marriages.
• It affirms that nonprofit religious organizations (like churches) are not required to perform or host marriages that conflict with their beliefs.

So what will happen to same-sex marriages if Obergefell were overturned?

The Respect for Marriage Act (RFMA) remains law. That means if Obergefell were overturned, the federal government will still recognize same-sex marriages. Federal benefits will remain for married same-sex couples (Social Security, immigration status, tax filing, etc.).

Same-sex marriages could become illegal to perform in some states, but those states would still have to recognize and honor same-sex marriages performed in another state. This principle is called “full faith and credit” – a legal protection found in the United States Constitution, requiring each state to respect and recognize laws in other states. Full faith and credit is why even if you’re an opposite-sex couple and you get married in, for example, California, you’re also deemed married in North Carolina, etc.

Existing same-sex marriages would remain legal, even if the state where the marriage was performed would not allow same-sex marriages without Obergefell. This is because, in part, the Due Process Clause prohibits the government from retroactively taking away a vested right. That means if you’re already married, you’ll still be married without Obergefell. However, same-sex couples seeking to get married if Obergefell were overturned might have to travel to a different state, where same-sex marriage is legal under state law.

How likely is it that the Respect for Marriage Act (RFMA) would be revoked?

RFMA was passed with bipartisan support; it passed the House of Representatives 258 (yes) to 169 (no), 219 Democrats and 39 Republicans voted yes, and it passed the Senate 61 (yes) to 36 (no), 49 Democrats and 12 Republicans voted yes. There would need to be a significant shift in Congress for enough votes to exist to revoke RFMA.

How likely is it that Obergefell would be overturned?

The Supreme Court has not indicated that it is willing to accept Kim Davis’s case. Even if her case is accepted, Obergefell was decided on different grounds than Roe, which makes the Supreme Court’s decision in Dobbs less applicable.

In Roe, the Supreme Court decided that the right to choose an abortion is protected by substantive due process, recognizing a right to privacy in family planning. In Dobbs (the case that overturned Roe), the Supreme Court decided that under substantive due process only rights that are “deeply rooted in history and tradition” are protected, and they decided that access to abortion is not one of those deeply-rooted rights.

In Obergefell, the Supreme Court reached its decision on two grounds, not just one; first, the Supreme Court decided that marriage is a fundamental right that is protected under substantive due process (like Roe), and second, the Supreme Court decided that denying same-sex couples the right to marry is discrimination prohibited by the Equal Protection Clause. Simply put, there’s an extra layer of legal protection supporting the Supreme Court’s decision in Obergefell that was not addressed in Dobbs.