What Happens if Obergefell is Overturned?

The Trump Administration and Project 2025 have a target to overturn Obergefell v. Hodges, the landmark Supreme Court decision that legalized same-sex marriage across the USA.

• How would it get overturned?
• What happens if it is overturned?

Understanding the legal landscape and potential consequences is crucial for same-sex couples navigating an uncertain future.

‍The Legal Foundation of Same-Sex Marriage

‍The right for same-sex couples to marry is based on two key Supreme Court cases:

‍United States v. Windsor (2013)

• Edith Windsor challenged the federal government’s definition of marriage as only between one man and one woman under the Defense of Marriage Act (DOMA).
• Windsor and her wife Thea were legally married in Canada, and New York recognized their marriage. However, Edith was denied the spousal exception to federal estate taxes.
• The Supreme Court ruled in Windsor’s favor, invalidating DOMA and requiring the federal government to recognize any marriage legally performed in a state.

Obergefell v. Hodges (2015)

• The Supreme Court ruled:
  “[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clause of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty.”
• This decision required all states to recognize same-sex marriage, making marriage equality a nationwide right.

Respect for Marriage Act (2022)

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

‍What Would It Take to Overturn Obergefell?

It Requires a Supreme Court Decision

‍While Congress could repeal the Respect for Marriage Act, that alone would not invalidate same-sex marriage rights, as those are currently protected under the Constitution.

For same-sex marriage to be outlawed, 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 ban it outright.
• Instead, it would revert the issue back to the states, creating a patchwork of marriage laws.

What About Windsor?

• If Obergefell is overturned but Windsor remains, same-sex marriage would still be recognized at the federal level, even if states banned it.
• To completely strip same-sex couples of marriage rights, the Supreme Court would need to overturn Windsor as well—a move that seems less likely, given this administration’s focus on state rights (as seen in abortion laws).

‍A Return to Patchwork Marriage Laws

State-Level Bans and Protections

• 35 states currently have constitutional amendments or statutes banning same-sex marriage.
• The remaining 15 states either have laws protecting same-sex marriage or lack explicit restrictions.
• Example: Ohio’s 2004 constitutional amendment defines marriage as between one man and one woman but does not define “man” or “woman.”

If Obergefell is overturned, the U.S. might return to a system like 2012-2015, where some states recognize same-sex marriage while others do not.

‍Federal vs. State Marriage Recognition

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

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

This patchwork system could lead to significant disparities in legal rights, particularly for same-sex couples traveling or moving between states.

‍Will Existing Same-Sex Marriages Be Invalidated?

‍This remains uncertain. However, from a logistical standpoint, undoing existing marriages would be extremely complex.

‍Challenges in Tracking and Reversing Marriages

• Marriage licenses do not always require gender disclosure, making it difficult to identify same-sex couples retroactively.
• In Ohio, marriage licenses are issued at the county level, meaning 88 different formats and storage systems exist.
• It would be a significant burden for state and federal governments to locate and “unwind” legally recognized marriages.

Federal Benefits and Protections

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

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

‍What Can I Do To Reduce My Anxiety About This?

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

‍1. Update Your Estate Plan

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

‍2. Secure Hospital Visitation Rights

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

‍3. Update Your Beneficiaries

‍✔️ Many assets, including bank accounts, retirement plans, and life insurance policies, allow you to name a beneficiary.
✔️ Ensure your spouse or partner is explicitly named to avoid challenges from estranged family members.

‍4. Get Involved in LGBTQ+ Advocacy

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

• Lambda Legal (www.lambdalegal.org)
• Human Rights Campaign (HRC) (www.hrc.org)
• The Trevor Project (www.thetrevorproject.org)
  ✔️ Vote for pro-equality candidates at every level of government.

Final Thoughts: Stay Informed and Take Action

‍While the threat to Obergefell v. Hodges is real, marriage equality is not lost yet. The LGBTQ+ community has fought too hard to let our rights be erased.By taking proactive legal steps, staying engaged, and supporting advocacy efforts, we can protect our rights and prepare for any challenges ahead.

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