The Supreme Court has established that same-sex couples have a constitutional right to marry and that the federal government must treat their marriages like any other. The core same-sex marriage Supreme Court rulings are United States v. Windsor (2013), which struck down the federal ban on recognizing same-sex marriages, and Obergefell v. Hodges (2015), which required every state to issue and recognize marriage licenses for same-sex couples.1Justia. Obergefell v. Hodges, 576 U.S. 644 (2015) Congress added a statutory backstop in December 2022 with the Respect for Marriage Act, so federal recognition and interstate recognition no longer rest on the court decisions alone.2Congress.gov. Public Law 117-228 – Respect for Marriage Act
Obergefell v. Hodges and the Right to Marry
In a 5–4 decision issued June 26, 2015, the Court held that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment guarantee same-sex couples the right to marry on the same terms as opposite-sex couples.3Oyez. Obergefell v. Hodges Justice Kennedy’s majority opinion identified four reasons marriage is a fundamental right: it is tied to personal autonomy, it supports a unique two-person bond, it safeguards children and families, and it is a foundation of social order. Each reason, the Court concluded, applies to same-sex couples with equal force.1Justia. Obergefell v. Hodges, 576 U.S. 644 (2015)
The ruling did two things. Every state must issue marriage licenses to same-sex couples under the same conditions as any other couple, and every state must recognize a same-sex marriage performed in another state. Before Obergefell, a couple could lose their legal marital status just by crossing a state line. That patchwork is now unconstitutional.
All of the legal benefits that states attach to marriage apply equally too. Joint property ownership, spousal inheritance, hospital visitation, and the presumption of parentage for children born during the marriage flow from the marriage itself, not from the spouses’ genders. Courts must strike down any state or local regulation that tries to create a separate tier of marriage rights.
United States v. Windsor and Federal Recognition
Two years earlier, the Court set the stage in United States v. Windsor (2013). It struck down Section 3 of the Defense of Marriage Act, which had defined marriage as a union between one man and one woman for all federal purposes. The facts made the stakes concrete. After Edith Windsor’s wife died, DOMA blocked Windsor from claiming the federal estate tax marital exemption, forcing her to pay $363,053 in taxes that a surviving spouse in an opposite-sex marriage would not have owed.4Justia. United States v. Windsor, 570 U.S. 744 (2013)
Striking Section 3 immediately opened access to more than a thousand federal statutes and regulations where marital status matters. Federal agencies had to review their rules and extend benefits to legally married same-sex couples. Windsor did not require states to issue marriage licenses, but it ended the federal government’s practice of ignoring marriages that states had already recognized.
Federal Benefits Available to Same-Sex Spouses
Together, Windsor and Obergefell mean that same-sex spouses receive the same federal benefits as any other married couple. The most consequential areas:
Taxes and Estate Planning
The IRS treats all legally married same-sex couples as married for every federal tax purpose, including filing status, the standard deduction, and eligibility for credits like the earned income tax credit and child tax credit.5U.S. Department of the Treasury. All Legal Same-Sex Marriages Will Be Recognized for Federal Tax Purposes Same-sex couples file joint returns or married-filing-separately returns, and the IRS reads every gender-specific term in the tax code to include same-sex spouses.6Internal Revenue Service. Revenue Ruling 2013-17 The marital deduction on estate and gift taxes applies, so assets passing to a surviving same-sex spouse are not subject to federal estate tax.
Social Security
A surviving same-sex spouse qualifies for Social Security survivor benefits under the same rules as any other widow or widower. The general requirement is a marriage of at least nine months before the spouse’s death, with exceptions for spouses caring for the deceased’s child. Former spouses may also qualify if the marriage lasted at least ten years.7Social Security Administration. Who Can Get Survivor Benefits
Military Benefits
Same-sex spouses of service members are eligible for TRICARE health coverage, housing allowances, and other military family benefits, including spouses of active duty, retired, and National Guard and Reserve members.8TRICARE. Getting Married
Immigration
U.S. citizens and lawful permanent residents can petition for immigrant visas for their same-sex spouses under the same criteria as any other marriage. The petitioning spouse submits an official civil marriage record to establish the marriage’s validity, with secondary evidence accepted case by case where the original is unavailable.9U.S. Citizenship and Immigration Services. Marriage and Marital Union for Naturalization
The Respect for Marriage Act
Obergefell is a court decision, and court decisions can be revisited. Congress addressed that risk in 2022 by passing the Respect for Marriage Act, which repealed what remained of DOMA and wrote marriage protections into federal statute.2Congress.gov. Public Law 117-228 – Respect for Marriage Act
The law does two main things. It requires the federal government to recognize any marriage between two people that was valid where it was performed.10Office of the Law Revision Counsel. 1 USC 7 – Marriage And it prohibits anyone acting under state law from denying full faith and credit to a marriage from another state based on the sex, race, or ethnicity of the spouses.11Office of the Law Revision Counsel. 28 USC 1738C – Certain Acts, Records, and Proceedings and the Effect Thereof Both the Attorney General and individual couples can enforce these protections in federal court.
One boundary matters. The Respect for Marriage Act does not require any state to issue marriage licenses to same-sex couples. If Obergefell were ever overturned, a state could stop issuing those licenses, but couples could marry in a state that still issues them and their home state would be legally obligated to recognize the marriage. Federal benefits would remain intact. The law also includes explicit protections for religious nonprofits, which cannot be required to provide services or facilities for a wedding and cannot lose tax-exempt status, federal grants, or accreditation on that basis.12Congress.gov. H.R. 8404 – Respect for Marriage Act
Parental Rights After Pavan v. Smith
Marriage carries a presumption of parentage: when a child is born during a marriage, both spouses are presumed to be legal parents. In Pavan v. Smith (2017), the Court confirmed that this principle applies equally to same-sex couples, ruling that states must list both same-sex spouses on a child’s birth certificate if they would list both spouses in an opposite-sex marriage.13Justia. Pavan v. Smith, 582 U.S. (2017)
The marital presumption does not always provide airtight protection for a non-biological parent, especially across state lines. Family law attorneys commonly recommend a second-parent adoption even when the couple is married, because an adoption order receives full faith and credit nationwide while a birth certificate only creates a presumption that another state could challenge.
Workplace Protections Under Bostock
In Bostock v. Clayton County (2020), the Court held that firing an employee for being gay or transgender violates Title VII of the Civil Rights Act, which prohibits sex-based employment discrimination.14Oyez. Bostock v. Clayton County The ruling covers employers with 15 or more employees and extends to compensation, benefits, and the terms and conditions of employment.
For married same-sex couples, the practical effect is significant. An employer that offers spousal health insurance to opposite-sex spouses but refuses to cover same-sex spouses is engaging in sex discrimination. The same logic applies to retirement benefits, family leave, and any other benefit tied to marital status, regardless of whether a particular state’s own anti-discrimination law covers sexual orientation.
Where the First Amendment Limits Service Refusals
Two decisions have carved out a narrow space where some business owners can decline certain projects without violating anti-discrimination law. Neither weakened the right to marry.
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), the Court ruled 7–2 that Colorado’s civil rights commission showed impermissible hostility toward a baker’s religious beliefs when it sanctioned him for refusing to make a wedding cake for a same-sex couple.15Supreme Court of the United States. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission The opinion was narrow and required religious neutrality in enforcement rather than creating a blanket right to refuse same-sex customers.
In 303 Creative LLC v. Elenis (2023), the Court held that the First Amendment prohibits Colorado from forcing a website designer to create expressive content celebrating marriages she disagrees with.16Supreme Court of the United States. 303 Creative LLC v. Elenis The distinction is between expressive and non-expressive services. A hotel, restaurant, or retail store providing standardized services to the general public generally cannot turn away customers based on sexual orientation. A business hired to create a unique, customized expressive work has a First Amendment right to decline projects whose message conflicts with the owner’s beliefs. A florist still has to sell a pre-made bouquet to any customer; the ruling protects compelled custom expression, not routine commerce.
Dormant State Bans and What Could Change
Thirty-two states still have statutory or constitutional bans on same-sex marriage on their books. Twenty-four have both a statutory ban and a constitutional amendment, three have only a constitutional amendment, and five have only a statutory ban. All of these bans are currently unenforceable because of Obergefell, and none have been formally repealed.
Whether Obergefell could be reversed is no longer a purely academic question. In his concurrence in Dobbs v. Jackson Women’s Health Organization (2022), Justice Thomas wrote that the Court “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”17Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization No other justice joined that concurrence, and the Dobbs majority specifically stated that its reasoning should not cast doubt on precedents unrelated to abortion.
If Obergefell were ever reversed, the Respect for Marriage Act would act as the backstop. The federal government would continue recognizing existing same-sex marriages and any new ones performed in states that still allow them,10Office of the Law Revision Counsel. 1 USC 7 – Marriage and every state would be required to recognize those marriages as well.11Office of the Law Revision Counsel. 28 USC 1738C – Certain Acts, Records, and Proceedings and the Effect Thereof States with dormant bans could stop issuing new licenses, in which case couples in those states would need to marry elsewhere. That scenario remains unlikely, but the statutory protections exist because Congress chose not to leave the question entirely to the courts.