Could Obergefell v. Hodges Be Overturned?

The Trump Administration and Project 2025 have set a goal to invalidate Obergefell v. Hodges, the landmark Supreme Court decision that legalized same-sex marriage nationwide in the US.

• How might this reversal come to pass?
• What are the implications if it's overturned?

Comprehending the legal environment and the potential ramifications is essential for same-sex couples as they navigate an unpredictable future.

The Legal Basis of Same-Sex Marriage

‍The entitlement of same-sex couples to wed is grounded on two principal Supreme Court cases:

‍United States v. Windsor (2013)

• Edith Windsor contested the federal government's definition of marriage as solely between a man and a woman under the Defense of Marriage Act (DOMA).
• Windsor and her wife Thea were legitimately wed in Canada, and New York recognized their marriage. However, Edith was refused the spousal exemption for federal estate taxes.
• The Supreme Court sided with Windsor, nullifying DOMA and mandating the federal government to recognize any marriage legally performed within a state.

Obergefell v. Hodges (2015)

• The Supreme Court decreed:
  '[T]he right to marry is a basic right inherent in the liberty of the individual, and under the Due Process and Equal Protection Clause of the Fourteenth Amendment, couples of the same sex may not be denied that right and that liberty.'
• This ruling compelled all states to recognize same-sex marriage, thereby rendering marriage equality a nationwide right.

Respect for Marriage Act (2022)

• In response to challenges against marriage equality, Congress enacted the Respect for Marriage Act, codifying both Windsor and Obergefell into federal law.

What Steps Are Required to Overturn Obergefell?

A Supreme Court Decision Is Necessary

‍Although Congress could repeal the Respect for Marriage Act, that action alone would not void same-sex marriage rights, since those rights are currently safeguarded by the Constitution.

To outlaw same-sex marriage, the Supreme Court would need to issue a ruling overturning Obergefell.

• This would remove the universal right to same-sex marriage, but it would not outright prohibit it.
• Instead, it would return the issue to the states, creating a varied set of marriage regulations.

What About Windsor?

• If Obergefell is overturned but Windsor remains, same-sex marriage would still be acknowledged at the federal level, even if states prohibit it.
• To fully strip same-sex couples of marriage rights, the Supreme Court would have to overturn Windsor as well—a move that appears less probable, given this administration's focus on state rights (similar to what has been seen in the context of abortion laws).

A Reversion to Fragmented Marriage Laws

State-Level Restrictions and Safeguards

• Thirty-five states currently possess constitutional amendments or statutes that ban same-sex marriage.
• The remaining fifteen states either have laws that protect same-sex marriage or lack express limitations.
• An Example: Ohio's 2004 constitutional amendment defines marriage as between a man and a woman, though it doesn't provide definitions for "man" or "woman."

If Obergefell is overturned, the US might return to a system reminiscent of 2012-2015, where certain states acknowledge same-sex marriage while others do not.

Federal versus State Recognition of Marriage

‍If Windsor, Obergefell, and the Respect for Marriage Act were all invalidated, this could generate a scenario where:

• Some states continue to allow same-sex marriages.
• Other states refuse to acknowledge those marriages.
• The federal government does not recognize any same-sex marriages.

This disjointed system could bring about significant differences in legal rights, especially for same-sex couples traveling or moving between states.

Will Existing Same-Sex Marriages Be Invalidated?

‍This remains unresolved. Nevertheless, from a practical standpoint, undoing existing marriages would be exceptionally complicated.

Difficulties in Tracking and Reversing Marriages

• Marriage licenses do not always necessitate gender disclosure, rendering it difficult to identify same-sex couples retroactively.
• In Ohio, marriage licenses are issued at the county level, implying that eighty-eight distinct formats and storage systems exist.
• It would pose a substantial burden for state and federal governments to find and "undo" legally recognized marriages.

Federal Benefits and Protections

‍Marriage affords vital legal benefits, including:
✔️ Social Security spousal benefits
✔️ Tax advantages for married couples
✔️ Medicaid/Medicare eligibility
✔️ Legal rights of next-of-kin

If same-sex marriages were annulled, couples could forfeit these protections, impacting financial security and healthcare access.

What Can I Do to Alleviate My Apprehension About This?

We recognize the LGBTQ+ community is greatly concerned about what the future holds for our rights—including marriage. While we cannot control the Supreme Court, there are preemptive steps you can take to safeguard yourself and your loved ones.

1. Update Your Estate Plan

‍Regardless of the fate of marriage laws, you can take steps to secure your rights and protect your spouse or partner:
✔️ Develop or update your will to expressly name your spouse as a beneficiary.
✔️ Establish a trust to protect assets for your partner in case of legal challenges.
✔️ Ensure powers of attorney are in place for healthcare and financial decisions.

2. Ensure Hospital Visitation Rights

‍✔️ A Hospital Visitation Authorization allows you to designate who can visit you if you are hospitalized—critical if hospitals stop acknowledging same-sex spouses.

3. Update Your Beneficiaries

‍✔️ Several assets, including bank accounts, retirement plans, and life insurance policies, permit you to name a beneficiary.
✔️ Ensure your spouse or partner is explicitly named to prevent interference from estranged family members.

4. Engage in LGBTQ+ Advocacy

‍✔️ Support local queer organizations working to safeguard LGBTQ+ rights.
✔️ Donate to legal groups contending for equality, such as:

Final Thoughts: Stay Informed and Take Action

‍While the threat to Obergefell v. Hodges is real, marriage equality is not yet lost. The LGBTQ+ community has striven too arduously to permit our rights to be eradicated. By taking anticipatory legal steps, staying engaged, and supporting advocacy initiatives, we can defend our rights and prepare for any impending challenges.

👉 Do you have questions about protecting your marriage or estate? Reach out to an LGBTQ+-affirming attorney today.