The Supreme Court of the United States has been asked to reconsider Obergefell v. Hodges, the landmark decision that established a nationwide right to same-sex marriage in 2015. Whether or not the Court ultimately revisits the issue, the durability of that right appears less certain than it has in recent years.
For same-sex couples—particularly those living in states with fewer independent protections—this uncertainty highlights the importance of planning ahead. While some safeguards would remain in place, a reversal of Obergefell could introduce significant legal and practical complications.
What Could Happen if Obergefell Is Overturned?
If the Supreme Court of the United States were to overturn Obergefell, the constitutional guarantee of same-sex marriage would no longer apply nationwide. Marriage rights would instead be determined by individual state laws, similar to the legal landscape prior to 2015.
This could result in a patchwork system, where same-sex couples are able to marry in some states but not others. States that previously restricted same-sex marriage could revive or reintroduce those laws, creating uneven access across the country.
Legal Protections That Would Still Apply
Respect for Marriage Act
The Respect for Marriage Act, enacted in 2022, requires states to recognize same-sex marriages that were legally performed elsewhere. This means that even if a state stops issuing marriage licenses to same-sex couples, it must still recognize valid marriages from other jurisdictions.
However, the law does not require states to allow same-sex marriages within their own borders. It ensures recognition, but not universal access.
State-Level Protections
Some states have independently legalized same-sex marriage through legislation or constitutional measures. In those states, marriage equality would likely remain intact regardless of federal changes.
In contrast, other states still have pre-2015 restrictions on same-sex marriage in their laws. Although currently unenforceable, those provisions could be revived if Obergefell were overturned.
Existing Marriages
Most legal interpretations suggest that marriages already performed would remain valid. However, uncertainty could arise in related areas such as parental rights, inheritance, and medical decision-making—particularly in states that limit recognition or rights tied to marriage.
Steps Same-Sex Couples Can Take Now
Consider Marriage
Couples in committed relationships may wish to consider marrying while the legal framework remains stable. Doing so can secure a range of legal benefits, including:
- Property and survivorship rights
- Tax advantages
- Authority in medical decision-making
- Inheritance protections
- Presumptions related to parentage
These rights may become more difficult to obtain in jurisdictions that restrict access to marriage in the future.
Establish Legal Protections
Regardless of marital status, certain legal documents can help safeguard rights and provide clarity:
- Wills: Ensure assets are distributed according to your wishes
- Durable Powers of Attorney: Allow a trusted individual to manage financial matters if needed
- Advance Medical Directives: Authorize someone to make healthcare decisions and outline your preferences
These measures can help avoid uncertainty in situations involving illness, incapacity, or death—especially if legal recognition of a relationship becomes less consistent.
Looking Ahead
Even if marriage equality remains unchanged in the near term, the issue could return to the courts. Under Supreme Court procedures, only four justices are required to agree to hear a case, meaning challenges to Obergefell may continue.
In this evolving legal environment, proactive planning is essential. By taking practical steps now, same-sex couples can better protect their rights, their families, and their long-term security.