As the election results unfolded on November 6th, many in the LGBTQ+ community began to panic that their right to marry may cease to exist. Given how the Supreme Court unraveled the landmark decision of Roe v Wade and president-elect Trump rolled back some LGBTQ+ protections in his first term, the concerns are real. With Trump in office and a majority of conservative-leaning justices on the bench, will the marriage rights the LGBTQ+ community fought so hard for slip away? Two safeguards in place will make it difficult to dismantle same-sex marriage: a Supreme Court ruling and federal law. That doesn’t mean the possibility doesn’t exist, but it is a small one.
In 2013, the U.S. Supreme Court case of United States v. Windsor established that the federal government must recognize all marriages performed in states where it is legal, including those of same sex couples. The decision also found that section 3 of the federal Defense of Marriage Act was unconstitutional.
Two years later in the case of Obergefell v. Hodges, the U.S. Supreme Court ruled that the 14th Amendment of the U.S. Constuitution requires that all states license and recognize same sex marriages. While that decision should be sufficient on its own, the federal government later extended protections of the right to same-sex marriage in 2022 with the Respect for Marriage Act. This act ensures that the federal government must recognize same-sex spouses for federal law purposes and that all states must respect a marriage that is validly entered into in another state. Some states have also taken extra steps to codify the right. New Jersey passed it’s own law recognizing the right to same-sex marriage almost a year prior to the Respect for Marriage Act. More recently, California, Colorado, and Hawaii passed ballot measures to amend the language in their state constitutions protecting same-sex marriage.
There are valid concerns over whether the Obergefell ruling will continue to stand in the future. In his concurring opinion to the decision overturning Roe v. Wade, Justice Clarence Thomas called on the court to overrule Obergefell, and Justice Samuel Alito has also expressed criticism of the ruling. With Trump in office, he could appoint more conservatives to the country’s highest court that align with the beliefs of Thomas and Alito. And while Chief Justice Roberts voted to uphold the right to same-sex marriage in a case the National Center for Lesbian Rights took to the Supreme Court, we do not know how any newly appointed justices would lean.
Despite Supreme Court unknowns, with the above mentioned laws and constitutional amendments in place, even if the justices try to undo the Obergefell ruling, same-sex couples would still be able to marry in some states, and their marriages are to be respected by other states and the federal government. And, even if the Supreme Court reversed its decision, that reversal would not invalidate existing marriages or impact the freedom to marry under state law.
Trump himself has not taken a stance against same-sex marriage. In fact, he has said that the decision was settled. Although his allies from the religious right may push him on the topic, it isn’t likely that marriage equality is a top target for the incoming president or Congress.
In order for same-sex marriage to be banned, Obergefell would need to be overturned, which at this juncture is not likely. If it did get overturned, the legality of same-sex marriage would fall to the states. In states that ban same-sex marriage, couples would need to travel and marry in a state that allows it. The Respect for Marriage Act would still force banning states to legally recognize the marriage. While Congress could repeal the Respect for Marriage Act, the act had Republican support and such repeal would require 60 votes in the Senate, which is also unlikely. So, while it is possible that just as Roe vs. Wade unraveled so could Obergefell, but it doesn’t seem to be a primary agenda for the new Trump administration.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.