Could gay marriage be overturned
MAP Report: The National Patchwork of Marriage Laws Underneath Obergefell
Rebecca Farmer, Movement Advancement Project
rebecca@ | ext
As the Respect for Marriage Act moves through Congress, MAP’s March report on the landscape of varying state marriage laws around the country is a resource. MAP researchers are free to answer questions and our infographics are available for use.
MAP’s report, Underneath Obergefell, explores the patchwork of marriage laws around the country. The report highlights the fact that a majority of states still have existing laws on the books that would ban marriage for same-sex couples – even though those laws are currently unenforceable under the U.S. Supreme Court ruling in Obergefell.
If the U.S. Supreme Court were to revisit the Obergefell decision, the ability of queer couples to marry could again fall to the states, where a majority of states still have in place both bans in the law and in state constitutions.
The policy
What Happens if Obergefell is Overturned?
The Trump Administration and Project have a target to overturn Obergefell v. Hodges, the landmark Supreme Court decision that legalized same-sex marriage across the USA.
- How would it find 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 ()
- Edith Windsor challenged the federal government’s definition of marriage as only between one dude and one woman under the Defense of Marriage Perform (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 commanded in Windsor’s favor, invalidating DOMA and requiring the federal government to remember any marriage legally performed in a state.
Obergefell v. Hodges ()
The Supreme Court could overturn its landmark ruling that established a nationwide right to same-sex marriage if a case addressing the matter is brought before it, experts told Newsweek.
Why It Matters
Last month, Idaho lawmakers approved a resolution that called for the Court to undo its Obergefell v. Hodges decision that declared a constitutional right for homosexual couples to marry.
After President Donald Trump appointed three conservative justices to the Court in his first term, cementing a conservative supermajority, the Court overturned Roe v. Wade in stripping away the constitutional right to an abortion. Since then, there hold been concerns that the Court's conservative justices could do away with other rights, including the right to same-sex marriage.
Clarence Thomas and Samuel Alito, two conservative justices who dissented in Obergefell v. Hodges, have suggested that the decision should be reconsidered.
What To Know
Gallup polling shows that a majority of Americans continue to accept marriage between same-sex couples should be legal (69 percent), though
Some Republican lawmakers increase calls against gay marriage SCOTUS ruling
Conservative legislators are increasingly speaking out against the Supreme Court’s landmark decree on same-sex marriage equality.
Idaho legislators began the trend in January when the state House and Senate passed a resolution calling on the Supreme Court to reconsider its judgment -- which the court cannot do unless presented with a case on the issue. Some Republican lawmakers in at least four other states prefer Michigan, Montana, North Dakota and South Dakota hold followed suit with calls to the Supreme Court.
In North Dakota, the resolution passed the state Home with a vote of and is headed to the Senate. In South Dakota, the state’s Residence Judiciary Committee sent the proposal on the 41st Legislative Day –deferring the bill to the terminal day of a legislative session, when it will no longer be considered, and effectively killing the bill.
In Montana and Michigan, the bills have yet to face legislative scrutiny.
Resolutions have no legal leadership and are not binding law, but instead permit legislati