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Fact check: Which states have laws in place to protect gay marriage rights if the Supreme Court overturns them?
Executive Summary
All 50 states currently allow same-sex marriage because of the Supreme Court’s 2015 decision in Obergefell v. Hodges and subsequent federal protections, but the legal landscape includes multiple layers: a Supreme Court precedent, a federal statute (Respect for Marriage Act), and varied state-level laws that may still contain unenforceable bans. If the Supreme Court were to overturn Obergefell, the Respect for Marriage Act preserves federal recognition and interstate recognition of existing marriages, while state constitutions and statutes would determine on-the-ground marriage access going forward [1] [2] [3].
1. Why the question matters now — a national rule versus state-by-state fallback
The 2015 Obergefell decision created a national rule requiring states to license and recognize same-sex marriages, which made same-sex marriage legal in all 50 states; some states nonetheless retain dormant constitutional or statutory bans that Obergefell rendered unenforceable. Recent reporting shows the Supreme Court is again considering challenges to same-sex marriage, prompting renewed interest in what protections would survive if Obergefell were reversed [1] [4]. The practical risk is that state-level dormant bans could be revived absent a controlling Supreme Court opinion, leaving the Respect for Marriage Act and individual state laws as the next line of defense [3] [2].
2. How the Respect for Marriage Act changes the safety net
Congress passed the Respect for Marriage Act in December 2022, which repealed the Defense of Marriage Act and requires federal recognition of same-sex marriages and recognition across states for marriages valid where performed. That law would continue to protect federal benefits and ensure that marriages legally performed in one jurisdiction are recognized federally and by other states, even if the Supreme Court were to overturn Obergefell. However, the Act does not force states to issue new marriage licenses to same-sex couples if state law or constitutions prohibit it, meaning existing marriages would be preserved federally but future access could vary by state [2].
3. What state laws currently do: a patchwork of protections and dormant bans
State-level legal landscapes are mixed: while same-sex marriage is effectively legal everywhere, some states have proactively enshrined protections in statute or constitution, and others retain pre-Obergefell prohibitions that are unenforceable today. A commonly cited compendium summarizes each state’s statutes and history, showing this patchwork status and noting where statutes explicitly protect marriage equality versus where bans remain but cannot be enforced because of Obergefell [3]. The key practical distinction is between states that have affirmative statutory or constitutional guarantees and those that merely lack enforceable bans [3] [5].
4. What would change on the ground if Obergefell were overturned
If the Supreme Court reversed Obergefell, states with affirmative statutory or constitutional protections would continue to allow same-sex marriages, while states that have only been bound by Obergefell could reinstate bans or refuse to issue licenses if their laws permit. The Respect for Marriage Act would continue to ensure federal recognition for marriages validly performed and would require states to recognize those marriages performed elsewhere, but it would not compel states to license new same-sex marriages contrary to state law. This creates a potential split: federal benefits preserved for existing couples, but local access and future marriages could differ widely by state [2] [5].
5. Recent reporting and legal developments that matter
News coverage from October 2025 indicates the Supreme Court is contemplating taking up a challenge that could revisit same-sex marriage precedent, renewing scrutiny of how federal and state layers interact. Reports repeatedly highlight the Respect for Marriage Act as a significant protective layer while also noting its limits in mandating state licensing policies, leading analysts to emphasize the continued importance of state laws and political control over legislatures and courts [4] [6]. Timing and composition of courts and legislatures will therefore shape whether state protections are expanded or eroded [7].
6. Practical steps states and couples can take now
States that have already codified marriage equality offer the clearest ongoing protection; couples in states without explicit protections should review whether their state has active statutes, dormant provisions, or recent legislative actions affecting marriage law. The existing federal statute preserves recognition of marriages already performed, so couples married elsewhere retain federal rights, but those seeking to marry in a non-protective state could face legal barriers if Obergefell is overturned. Legal counseling and keeping abreast of state legislative sessions will be critical for those in vulnerable jurisdictions [3] [2].
7. Bottom line: layered protections but real vulnerabilities remain
The combined effect of Obergefell and the Respect for Marriage Act means same-sex marriages are presently protected at federal and national levels, and federal recognition for existing marriages would survive through the federal statute. Nevertheless, the presence of unenforced state bans and the limits of the Respect for Marriage Act to compel state licensing mean that if Obergefell falls, the right to marry could again vary by state—with outcomes determined by state statutes, constitutions, and political dynamics [1] [2] [5].