Without Obergefell, most states would ban same-sex marriage

The United States Supreme Court legalized same-sex marriage in 2015, but in most states, laws or constitutional amendments would revive the ban if the High Court decided, as it did for abortion, that such unions are not a constitutionally protected right.

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

All were overturned in 2015 in Obergefell v. Hodges. But if the now more conservative United States Supreme Court struck down the right to same-sex marriages, those state laws and constitutional amendments would go into effect.

“These constitutional amendments are still on the books and would likely be put into place,” said Jason Pierceson, a professor of political science 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 presumably be in effect if the court overturned Obergefell.”

And the decision to abort is likely to open the door to challenges, Pierceson said.

Justice Clarence Thomas, in a concurring opinion on the abortion case Dobbs v. Jackson Women’s Health Organization, said this is exactly the route the court should take. Her opinion has alarmed many observers, despite the assertion of majority opinion writer Judge Samuel Alito that the ruling overriding abortion rights has nothing to do with other rulings on the same-sex marriage, contraception and sex between consenting adults.

However, a decision striking down Obergefell would not overturn state laws allowing same-sex marriage: some states had legalized unions before 2015. Among them were 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 states where the laws expressly permit it.

Codifying equality

In Utah, one of the states that has both a constitutional amendment and a law banning same-sex marriage, state senator Derek Kitchen, a Democrat, is trying to codify marriage equality. He “opened” a bill on the subject. (In Utah, opening a bill means that he has formally expressed his intention to introduce the bill and is drafting the bill and soliciting co-sponsors.)

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

Kitchen said he had support for his upcoming bill in both parties, but said Senate Speaker Stuart Adams, a Republican, stood in his way. Adams said at a news conference following the Roe v. Wade that he would be willing to have a group from Utah with other states to take a case against same-sex marriage to the United States Supreme Court.

Reached by phone in Utah, Adams denied being 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. while he is still sorting out the abortion implications. decision.

He added that it is “premature” to say what his position would be. However, he said that if the Supreme Court was considering overriding the right to same-sex marriage, “I think the states are in the best position to handle that decision.”

“Why would I start moving forward on this without public input and public discussion? I’m not going to go now,” he said. “Everyone asks me, I have a long history of belief in states’ rights and the 10th Amendment.”

He also pointed to two bills he championed that took effect in 2015 that attempt to balance religious freedom with the rights of LGBTQ Utah residents. The bills protect against discrimination in housing and employment, but also allow companies to refuse to provide certain services to certain categories of people if landlords believe that carrying out such activities 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 saying that despite Obergefell’s rulings, individuals in Texas have no not have to comply because the state constitution defines marriage. as being between a man and a woman. They asked him to give an opinion on their argument.

Paxton, however, declined to act. In a letter to White in March, he replied that the United States Supreme Court had a pending Colorado case that might better answer that question. In February, the High Court agreed to hear arguments in the case, which involves a web designer who did not want to create a site for same-sex marriages.

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

Some states have taken proactive steps to get rid of existing bans on same-sex marriage.

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

New Jersey Democratic Gov. Phil Murphy signed a law in January that says all marriage and civil union laws are considered neutral.

Still, LGBTQ rights advocates worry that the series of state bills imposing new restrictions on transgender people could pave the way for a ban on 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 aimed at banning transgender girls from participating in girls’ sports at the high school or college level, according to Stateline research, but others related to health care confirming gender.

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

“From names on a marriage certificate to allowing businesses to opt out of LGBTQ+ marriages, our opposition is already doing the work to try to undermine marriage equality,” Topping said.

She also pointed to bills that would allow adoption agencies to discriminate against couples who do not meet their religious or sexual criteria and bills on transgender youth. “If they start attacking marriage, that would be even less popular than attacking transgender youth.”