Yes, Obergefell v. Hodges could be overturned, but doing so would require a real lawsuit to climb through the federal courts and a majority of the Supreme Court willing to revisit a decision grounded in two separate constitutional clauses. Even in that scenario, the Respect for Marriage Act, signed in 2022, would keep existing same-sex marriages recognized by the federal government and honored across state lines. What states could no longer be forced to do is issue new licenses.1Justia. Obergefell v. Hodges, 576 U.S. 644 (2015)
The question deserves a careful answer because the risk is neither zero nor imminent, and the consequences of a reversal would not fall evenly across couples or across states.
What Obergefell Rests On
The 2015 majority did not tie the right to marry to a single constitutional provision. Justice Kennedy grounded it in both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, writing that “each concept—liberty and equal protection—leads to a stronger understanding of the other.”2Supreme Court of the United States. Obergefell v. Hodges
That dual foundation matters. The Dobbs ruling that overturned Roe v. Wade attacked substantive due process by asking whether the claimed right was “deeply rooted in the nation’s history and tradition.” The Equal Protection Clause works differently. It asks whether the government is treating similarly situated people unequally without adequate justification. Dismantling Obergefell means confronting both pillars, not just the due process argument that draws the most attention.
What Dobbs Actually Signaled
The Dobbs majority opinion said directly: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”3Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization That sentence was a deliberate signal that the Court’s historical analysis of abortion was confined to abortion.
Justice Clarence Thomas, writing only for himself, took the opposite view. His concurrence urged the Court to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” calling them “demonstrably erroneous.”3Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization No other justice joined him. The distance between the majority’s reassurance and Thomas’s invitation is where the genuine legal uncertainty lives.
The more general worry is methodological. The “history and tradition” test the Dobbs majority applied to abortion could, in principle, be extended to other substantive due process rights. Same-sex marriage was not recognized when the Fourteenth Amendment was ratified in 1868, so it would struggle under a strict historical inquiry. But Obergefell also rests on equal protection, and whether a future Court would extend the same historical test into equal protection territory is an open question.4U.S. Constitution Annotated. Dobbs v. Jackson Women’s Health Organization and Post-Dobbs Doctrine
What a Challenge Would Have to Look Like
The Supreme Court cannot revisit Obergefell on its own. Article III limits federal courts to real disputes between real parties.5Congress.gov. ArtIII.S2.C1.1 Overview of Cases or Controversies
The most direct route starts with a state legislature passing a law that deliberately conflicts with Obergefell. A couple denied a license, or an organization affected by the law, sues in federal district court. The losing side appeals to a federal circuit court. After that, the losing side files a petition for certiorari asking the Supreme Court to take the case.6Legal Information Institute. Supreme Court Rule 10 – Considerations Governing Review on Writ of Certiorari
The Court grants certiorari only for “compelling reasons,” and it takes four justices to agree. Even reaching that stage takes years. The plaintiff needs a concrete personal injury, a clear link between that injury and the challenged law, and a court order that would fix the problem. Cases that fail any part of that test get dismissed before the constitutional question is ever reached.
Stare Decisis and the Reliance Problem
Stare decisis is the legal system’s preference for following its own prior rulings. It’s not absolute; the Court has overruled itself more than 200 times. In Dobbs, the majority weighed the nature of the alleged error, the quality of the original reasoning, whether the rule was workable in lower courts, its effect on other areas of law, and reliance interests.3Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
Reliance is where the analogy to Dobbs breaks down hardest. The Dobbs majority argued that overruling Roe did not upset “concrete reliance interests” of the sort found in property or contract cases. Marriage is exactly that kind of legal relationship. Millions of couples have married, filed joint tax returns, adopted children, inherited property, and structured insurance and retirement arrangements around their legal status. Undoing that is a very different task from undoing Roe.
What Would Survive: The Respect for Marriage Act
Congress passed the Respect for Marriage Act in 2022 to create a statutory floor beneath the constitutional right. The Act works on two tracks: how the federal government treats marriages, and how states must treat marriages performed elsewhere.7Congress.gov. H.R.8404 – Respect for Marriage Act
On the federal side, the Act replaced the Defense of Marriage Act’s man-woman definition with a gender-neutral standard at 1 U.S.C. § 7. Any marriage between two people that was valid where performed counts as a marriage for every federal law, rule, and regulation tied to marital status.8Office of the Law Revision Counsel. 1 USC 7 – Marriage Social Security survivor benefits, joint tax filing, veterans’ benefits, federal employee health coverage, and immigration petitions all follow from that definition.
On the interstate side, the Act created 28 U.S.C. § 1738C, which bars any person acting under state authority from denying full faith and credit to a marriage performed in another state based on the sex, race, or ethnicity of the spouses.7Congress.gov. H.R.8404 – Respect for Marriage Act A couple married in New York who moves to a state that no longer issues those licenses must still be treated as married by the new state.
The Act also locks recognition to the time and place of celebration: only the law in force when and where the marriage happened governs its validity. A state cannot retroactively invalidate a marriage by changing its own law afterward.8Office of the Law Revision Counsel. 1 USC 7 – Marriage
Section 6 of the Act protects nonprofit religious organizations from being compelled to solemnize or host marriages that conflict with their beliefs, and states that a refusal on those grounds creates no legal claim against them.7Congress.gov. H.R.8404 – Respect for Marriage Act That provision was central to securing the votes for passage.
The Gap the Act Leaves Open
The Respect for Marriage Act does not require any state to issue a marriage license to a same-sex couple. If Obergefell fell, a state could stop issuing those licenses without violating the Act. The federal government and other states would still recognize marriages already performed, and couples could still travel to a permissive state to marry. But access would depend on geography, and couples in restrictive states would carry the burden and expense of marrying elsewhere.
Dormant State Bans
More than 30 states still have constitutional amendments or statutes banning same-sex marriage. Obergefell made them unenforceable, but the language remains on the books. If Obergefell were reversed, some of those bans could take effect the same day, with no new legislation required. Other states have gone the other direction and written marriage equality into their own constitutions or statutes, where it would survive regardless of what the Supreme Court does. The result of a reversal would be a patchwork: full marriage rights in some states, none in others, with the Respect for Marriage Act requiring cross-state recognition throughout.
Where the Real Damage Would Land
Parentage
For same-sex couples raising children, the consequences of losing marriage recognition reach well past the certificate. In most states, when a child is born to a married couple, both spouses are presumed legal parents. If the marriage is no longer recognized, that presumption can collapse, leaving the non-biological parent with no legal relationship to the child.
The safer route is a second-parent or stepparent adoption, which creates a legal parent-child relationship that survives divorce, relocation, and any shift in the underlying marital status. Stepparent adoption is available everywhere for married couples, but second-parent adoption for unmarried parents exists in only about 22 states and the District of Columbia. In roughly 30 states, statutes governing children born through assisted reproduction protect the intended parent only if that parent is married to the birth parent. Take away the marriage and the statutory protection can go with it.
Custody, medical decision-making, school enrollment, and dependent health coverage all flow from legal parentage. Couples in vulnerable states who have not completed a second-parent adoption should treat that as an urgent step.
Immigration
USCIS uses the “place-of-celebration rule”: if the marriage was valid where performed, USCIS recognizes it for spouse-based green card petitions, regardless of the couple’s state of residence.9U.S. Citizenship and Immigration Services. Marriage and Marital Union for Naturalization Because the Respect for Marriage Act preserves federal recognition of marriages valid where performed, the immigration pathway would likely remain open for couples already married. Couples in restrictive states who had not yet married would need to travel to a permissive jurisdiction first, which is manageable for many and a genuine obstacle for others, particularly those already in removal proceedings.
Domestic partnerships and civil unions, however robust under state law, do not qualify as marriages for federal immigration purposes.9U.S. Citizenship and Immigration Services. Marriage and Marital Union for Naturalization For binational same-sex couples, that distinction can be the difference between staying together in the country and separation.
Civil Unions and Domestic Partnerships Are Not Substitutes
Some states that might restrict marriage could offer civil unions or domestic partnerships instead. These arrangements confer some state-level rights but are categorically different from marriage. Domestic partners generally cannot inherit automatically without a will and may owe taxes on inherited assets that a spouse would receive tax-free. They cannot file federal taxes jointly. They cannot sponsor an immigrant partner. Federal law keys everything to the word “marriage” as defined at 1 U.S.C. § 7, and the Respect for Marriage Act expanded that definition without extending federal recognition to civil unions or domestic partnerships.8Office of the Law Revision Counsel. 1 USC 7 – Marriage
Steps Couples Can Take Now
Couples already married and living in a state that might later restrict marriage are covered by the Respect for Marriage Act’s recognition mandate and its time-of-celebration rule. The marriage remains valid for federal purposes and must be honored by other states.
Couples not yet married who are considering it face a different calculation. Marrying while Obergefell remains good law locks in the legal protections that come with a valid marriage nationwide. If the decision were later reversed, the Respect for Marriage Act would still require the federal government and other states to honor the marriage.
For parents, completing a second-parent or stepparent adoption establishes a legal parent-child relationship that exists independently of the marriage. It survives divorce, relocation, and any change in the underlying constitutional rule. Beyond that, wills, powers of attorney, healthcare directives, and beneficiary designations should be current and should name the partner by name, rather than relying on spousal defaults that could shift if marital recognition changes at the state level.