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Fact check: Which states would likely reinstate gay marriage bans if the Supreme Court overturns gay marriage rights?
Executive Summary
If the Supreme Court were to overturn Obergefell, multiple contemporary analyses indicate a substantial portion of U.S. states — commonly cited as around 30–31 states — have laws or constitutional amendments that would allow same-sex marriage bans to be reinstated, while roughly 19 states have statutes or constitutional language protecting marriages for same-sex couples and would be unlikely to re-ban them [1] [2]. Recent reporting also documents state-level legislative moves in 2024–2025 aiming to either pressure the Court or create new legal categories that would limit recognition of same-sex unions, signaling that outcomes will depend on technical legal mechanisms in each state as well as short-term political decisions [3] [4].
1. What the claims say and where they diverge — a blunt inventory of the assertions
Multiple pieces of analysis assert that a clear majority of states contain pre-Obergefell restrictions that could “reactivate” if the Supreme Court reverses its 2015 decision. One September 2025 roundup explicitly lists 31 states with “anti-marriage equality trigger laws” or constitutional amendments that would render same-sex marriage unlawful if federal protection ended [1]. A companion September 2025 piece identifies 19 states that have statutory or constitutional safeguards making repeal unlikely [2]. Earlier reporting from February 2025 enumerates a set of states where lawmakers introduced measures to undermine marriage equality or to formally urge the Court to overturn Obergefell, highlighting active political efforts beyond dormant statutory text [3] [4]. These claims converge on the central fact that state-level legal texts and recent legislative activity together determine where bans could reappear, but they differ on precise lists and emphases.
2. Which states are named most often as vulnerable — the recurring roster
Across the sources provided, a recurring list of states appears: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming are repeatedly cited as jurisdictions that could reinstate bans because of constitutions or statutes predating Obergefell [5]. The September 2025 reporting expands that count to 31 states by including similar constitutional amendments and “zombie laws” while the companion piece explicitly notes 19 states that maintain protections, naming states such as California, Colorado, and Connecticut in that group [1] [2]. The overlap across lists shows broad agreement on many at-risk states but the exact roster varies based on how analysts treat repeals, court decisions, and state statutes.
3. How legal mechanisms would actually work — “trigger” statutes and zombie laws explained
The sources emphasize two distinct pathways by which bans could reappear: constitutional amendments and dormant statutory bans. Constitutional amendments that define marriage as between one man and one woman would immediately empower state officials to refuse to license or recognize same-sex marriages absent a federal rule to the contrary; sources call these “amendments” or “zombie laws” when they lie inactive only because of Obergefell [6] [7]. Statutory prohibitions and non-recognition clauses in state codes would likewise revert to force unless state governments enacted new laws or state judges interpreted them differently. Contemporary 2024–2025 reporting highlights both the textual reality and the political choices states would face — some would proactively repeal or refuse to enforce these provisions, while others have signaled intent to implement them [8] [3].
4. Political momentum and recent legislative activity — who’s pushing to roll back or hedge rights
Recent reports from early 2025 document active legislative efforts in at least nine states to introduce measures undermining same-sex marriage, with five states specifically urging the Supreme Court to overturn Obergefell and others proposing new forms of “covenant marriage” limited to opposite-sex couples [3] [4]. This indicates both reactive and proactive strategies: some lawmakers are working to ensure instant legal effect if Obergefell is reversed, while others seek new statutory paths that would restrict recognition even absent a direct constitutional amendment. The presence of introduced bills and resolutions in states like Michigan, Idaho, Montana, North Dakota, South Dakota, Missouri, Oklahoma, Tennessee, and Texas underlines that the legal landscape is not static and that legislative calendars could change which states would actually re-ban marriages in the immediate aftermath [3] [4].
5. Why lists differ, what to watch next, and the practical timeline for change
Differences among the counts (19 vs. 31 states) reflect methodological choices: whether analysts count only active, enforceable bans or every pre-existing constitutional amendment and statute that would be legally operative absent Obergefell; whether states that have removed bans since 2015 are excluded; and whether proposed but unenacted legislation is treated as decisive [1] [2] [7]. The practical timeline after any Supreme Court reversal would hinge on immediate state executive and judicial responses, legislative sessions to repeal or reenact provisions, and enforcement choices by county officials. Watch for updated state-level filings, emergency court decisions, and any rapid state legislative sessions — those are the events that will convert dormant text into on-the-ground policy [5] [8].