Could the Supreme Court Overturn the Right to Same-Sex Marriage?

A Clear Look at the Law and What It Would Mean

In 2015, the U.S. Supreme Court decided Obergefell v. Hodges, holding that the Constitution guarantees same-sex couples the right to marry. This landmark decision ensured that marriage equality became the law of the land, requiring all states to both license and recognize marriages between same-sex partners.

How the Law Could Change

Supreme Court decisions can be overturned, either by the Court itself in a future case or by a constitutional amendment. For the Court to revisit Obergefell, a new case involving marriage rights would need to work its way through lower courts and be accepted for review. This process takes time, and there’s no automatic “rehearing” of old decisions. It’s also important to note that overturning precedent, especially one as significant as Obergefell, is rare but not unheard of.

Why is Everyone Talking About This Right Now – Davis v. Moore

Kim Davis, the elected county clerk in Rowan County, Kentucky, refused to issue marriage licenses to same-sex couples after the Supreme Court’s 2015 Obergefell v. Hodges decision. She claimed doing so violated her religious beliefs. Several couples sued, saying Davis’s refusal violated their constitutional rights.

The Case

Two consolidated suits — including Davis v. Moore — went forward in federal court. Judges repeatedly ruled against Davis, finding her actions violated clearly established law under Obergefell.

Lower Court Rulings

In 2022, a federal jury awarded $100,000 in damages to one of the couples. The Sixth Circuit Court of Appeals upheld this verdict, rejecting Davis’s arguments that she was protected by qualified immunity.

 Supreme Court Denials

2023: Davis petitioned the U.S. Supreme Court to hear her case. The Court declined without comment, leaving the rulings against her in place.

2025: Davis filed a second petition for certiorari, again asking the Court to review her liability and revisit Obergefell. This renewed effort has gained attention because it echoes other recent petitions that indirectly or directly challenge marriage equality. As of now, the Court has not ruled on whether it will even take the case.

It’s important to note:

• The Court has not yet decided whether to take the case.
• Many such petitions are denied without comment.
• Unless and until the Court agrees to hear it and then issues a ruling, Obergefell remains the law of the land.
• Even if the Court agrees to hear the case, it is very unlikely to overturn such a recent decision.
• A federal law exists to protect already-existing marriages in the event Obergefell is overturned.

What Would Happen If Obergefell Were Overturned

If the Court ever did reverse Obergefell, the Constitution would no longer be interpreted to require states to allow or recognize same-sex marriages. This would not ban same-sex marriage nationwide, instead, it would leave the decision up to individual states.

• States with marriage equality laws would still allow same-sex couples to marry.
• States with bans still on the books (many from before 2015) could choose to enforce those bans again.
• Existing marriages would remain valid under federal law for certain purposes, but recognition across states could become inconsistent.

The practical impact would vary by state, and many states already have legal protections that would remain in place even without the federal mandate.

Why Many Protections Would Remain

Even if Obergefell were overturned, other legal safeguards — such as the 2022 Respect for Marriage Act — require the federal government and all states to recognize marriages validly performed in any state, regardless of the couple’s sex. While states could stop issuing new licenses to same-sex couples, they would still have to recognize marriages performed in other states.

Impact on Same-Sex Parents and Families

Marriage equality is closely tied to parental rights, and the possibility of overturning of Obergefell v. Hodges naturally creates uncertainty for many families. Many people are understandably worried about:

1. Adoption and Parental Recognition
   In many states, being married automatically grants both spouses legal parental rights to children born or adopted during the marriage. If Obergefell were overturned, states that do not recognize same-sex marriage could try to refuse to recognize the non-biological parent, even if the couple was legally married in another state. This theoretically could affect adoption, custody, and guardianship.

2. Custody and Visitation
   Courts generally favor recognizing the legal parent-child relationship established under state law. If marriages aren’t recognized in certain states, same-sex parents might face additional hurdles asserting custody or visitation rights, especially if the other parent challenges those rights. This would only impact new families, however, already established parents would not lose any rights.

3. Access to Benefits and Protections
   Marriage provides access to important benefits for families, including health insurance, Social Security survivor benefits, and inheritance rights. Legal recognition across states ensures these protections remain consistent. Without nationwide recognition, in the future, same-sex parents might need to take extra legal steps to secure these benefits for their children.

Most of These Concerns are Addressed in the 2022 Respect for Marriage Act

The Respect for Marriage Act (RFMA), signed into law in 2022, ensures that:

• Federal recognition of marriages: The federal government must recognize any marriage legally performed in a U.S. state, regardless of the couple’s sex, race, or national origin.
• Interstate recognition: States are required to recognize marriages that were validly performed in other states, even if the state would not issue the license itself.

In other words, if a same-sex couple marries in a state that allows it, every other state and the federal government must recognize that marriage.

How It Protects Same-Sex Parents

This law provides a critical safety net for families:

• Parental rights remain intact. Parents who are legally married in one state will continue to have recognized parental rights in other states. This includes custody, visitation, and the ability to make important decisions for their children.
• Access to benefits is secured. Federal benefits tied to marriage, such as Social Security survivor benefits, health insurance coverage, and tax benefits, are guaranteed even if a family moves to a state that might not issue same-sex marriage licenses.
• Consistency across states. Families can move or travel without worrying that their marriage or parental rights will be invalidated.

FAQ: Same-Sex Marriage and Potential Legal Changes

1. If Obergefell were overturned, would my marriage still be valid?
   Yes. Existing marriages would generally remain valid under federal law and in states where they were legal when performed. The Respect for Marriage Act also requires states to recognize marriages validly performed in other states.

2. Could my state stop issuing marriage licenses to same-sex couples?
   If Obergefell were overturned, some states might reinstate old bans or pass new laws restricting marriage licenses. However, this would vary by state, and in many places, marriage equality is protected by state law or even state constitutions.

3. What about my federal benefits like Social Security, taxes, or immigration status?
   Federal benefits tied to marriage would still apply if your marriage is valid in at least one state when performed. The federal government would continue to recognize these marriages because of the Respect for Marriage Act.

4. Would I still be recognized as married if I travel or move to another state?
   Yes, under current federal law, all states must recognize marriages that were legally performed in any other state. This means you could marry in a state that issues licenses to same-sex couples and have that marriage recognized nationwide.

5. Could the Respect for Marriage Act be changed in the future?
   Like any law, Congress could amend or repeal it. However, given the current level of public support for marriage equality, major rollbacks are unlikely.

A Note of Reassurance

Even if a future Supreme Court ruling were to overturn Obergefell, the Respect for Marriage Act ensures that families already married are protected. It strengthens legal certainty and helps families plan their lives with confidence, knowing their rights as parents and spouses are recognized nationwide. While new families could face challenges discussed above, the likelihood of current families losing their rights and benefits is slim, even if Obergefell was overturned.

Practical Steps Families Can Take

If Obergefell were overturned, there are several ways to protect parental rights:

• Legal adoption or second-parent adoption for the non-biological parent
• Guardianship agreements and powers of attorney
• Consulting family law attorneys to confirm rights under state law