Many LGBTQ+ couples worry about whether marriage equality could be overturned or limited in the future. This article explains the current legal status of same-sex marriage, what signs lawyers are watching for, and how couples can protect their families today.
Since the shock decision in Dobbs overturning decades of precedent in the area of reproductive freedom, many people have worried that marriage equality could be next. Here we will clarify some common misconceptions, discuss signals to look out for, and explore possible scenarios.
The Current Legal Status of Same-Sex Marriage
To be clear, same-sex marriage remains legal and protected nationwide as of the writing of this article. Ten years ago in the landmark case of Obergefell v. Hodges, the United States Supreme Court, in a 5-4 decision, recognized a constitutional right for same-sex couples to marry.
Since then, in 2022, Congress passed the Respect for Marriage Act, which then-President Biden signed into law. This landmark piece of legislation was passed partially in response to the concerns after Dobbs that the United States Supreme Court could overturn marriage equality. It is very important to understand what the Respect for Marriage Act does and does not do.
The Respect for Marriage Act requires all states to recognize same-sex marriages performed in other states and recognizes same-sex marriages for federal purposes. It is an important nuance of our governmental system to understand that the federal government does not oversee marriages; that is left exclusively to the states to administer and implement. That is why it is a myth to say that the Respect for Marriage Act “legalized” same-sex marriage. Instead what it says is that the federal government and other states must recognize a valid same-sex marriage from a state in which it is legal.
Federal Protections:
- The Supreme Court in Obergefell held that there is a constitutional right for same-sex couples to marry in the entire country, invalidating state-level bans on same-sex marriages as well as federal restrictions.
- The Respect for Marriage Act requires all states to recognize same-sex marriages performed in other states.
- The Respect for Marriage Act recognizes same-sex marriages for federal purposes.
State Protections:
- Florida’s statutory and constitutional bans on same-sex marriage remain on the books, but are invalid so long as Obergefell remains good law, which it currently is.
How Existing Marriages Would Be Treated if the Law Changes
- While this is fairly uncharted territory, most legal scholars believe that if Obergefell were overturned, already existing same-sex marriages would remain intact and unchanged. There are very real constitutional as well as logistical concerns over how thousands of otherwise valid marriages could be simply undone by a federal judicial decision. It is difficult to imagine the United States Supreme Court having the appetite for that kind of decision.
- See below for the discussion on the impact the Respect for Marriage Act has on same-sex marriages in a hypothetical post-Obergefell world.
Could the Supreme Court Overturn Marriage Equality?
The short answer is yes. The reality is that Obergefell was a 5-4 decision, with the thinnest of majorities. Since 2015, the composition of the Supreme Court has changed in a much more conservative direction. Justice Anthony Kennedy, the author of Obergefell and a champion of LGBTQ+ rights cases for many years, has retired.
However, it is not as if the current justices can just hold a simple vote out of the blue on whether to overturn Obergefell. Instead, a proper case that brings the issue of same-sex marriage back before the court would need to wind itself through the lower courts, which takes years, before it could potentially go before the Supreme Court. Additionally, the justices only choose to take a handful of cases a year, which means that even if a case winds its way to the Supreme Court, there is no guarantee they would actually choose to hear the case. Failing to understand this process leads to media hysteria as well as panic from people who simply want to make sure their marriages are not going to evaporate overnight.
One big example of this is from the summer of 2025 in which a rogue clerk in Kentucky sought review before the Supreme Court and included a request to overturn Obergefell. Media outlets glommed onto this and as a result many people genuinely feared that marriage equality was in imminent danger. (links: Supreme Court formally asked to overturn landmark same-sex marriage ruling – ABC News; Opinion | 5 Reasons the Supreme Court Might Change Its Mind on Same-Sex Marriage – POLITICO). Instead, the Supreme Court quietly and efficiently denied this long-shot petition without dissent or discussion.
Attorney insight: “What lawyers are monitoring right now.” There are networks of attorneys who monitor legislation and lawsuits to keep an eye on anything that could potentially imperil Obergefell.
Signals That a Challenge Might Be Coming
- State-level bills, of which there are plenty
- Litigation strategies seen in lower courts
- Historically relevant patterns
The bottom line, however, is that there should be ample warning before a case that could possibly result in the overturning of federal marriage equality makes its way to the Supreme Court.
Could Florida Restrict Marriage If Obergefell Falls?
Yes and no. Florida’s pre-Obergefell ban on same-sex marriage, both statutorily and constitutionally, remains on the books. This means if Obergefell were overturned, Florida’s ban would be back in effect. However, that is not the end of the story. The reality is that if Obergefell were overturned, it would very likely be prospective only–meaning impacting future same-sex marriages, not existing ones. Further, the Respect for Marriage Act protects same-sex marriages that were validly performed in states in which it was legal at the time.
For married same-sex couples in Florida, their marriages would very likely remain unimpacted. For unmarried same-sex couples in Florida who wished to get married, Florida would not longer be required to administer their marriages, but Florida would still be required to recognize a same-sex marriage validly performed in another state. This means couples would have to get married in another state and return to Florida.
Further, a large number of states have legalized same-sex marriage, both before and after Obergefell, statutorily, judicially, or through voter referenda, and those laws would remain good laws in spite of any future decisions by the Supreme Court.
What LGBTQ+ Couples Can Do Right Now to Protect Their Rights
While there is no reason to worry about the immediate legality of same-sex marriage nationwide, concerned couples can still take some concrete steps to shore up their rights, such as:
- Second-parent adoption
- Robust estate planning documents
- Powers of attorney and Designation of Healthcare Surrogate
Frequently Asked Questions for LGBTQ+ Couples
Should we get married now?
Currently there is no reason to believe that your legal right to marry a same-sex partner is imperiled.
Do we need additional documents even if we are married?
No; however, every married couple, of every variety, should ensure they have proper estate planning documents in place as a matter of prudence and legacy protection.
Does my marriage still count if I move to a restrictive state?
Yes; the Respect for Marriage Act requires both states and the federal government to recognize same-sex marriage validly performed in states in which it is legal.
Can states refuse to issue marriage licenses but still recognize them?
Currently, no. If Obergefell were overturned and the Respect for Marriage Act remains the law, then yes.
How Our Firm Supports LGBTQ+ Clients
Our firm offers a variety of services to help support LGBTQ+ clients and couples, including marriage and family planning, including prenuptial agreements; referrals to adoption attorneys who can assist with that process; same-sex divorce; legal name changes.