Supreme Court same-sex marriage rulings rest on two decisions a decade ago: United States v. Windsor in 2013, which forced the federal government to recognize state-sanctioned same-sex marriages, and Obergefell v. Hodges in 2015, which required every state to license and recognize them. Congress added a statutory backstop in 2022 with the Respect for Marriage Act. Together, these three sources define what married same-sex couples are entitled to under federal law today.
Windsor Struck Down the Federal Marriage Ban
On June 26, 2013, the Supreme Court decided United States v. Windsor by a 5–4 vote. The case targeted Section 3 of the Defense of Marriage Act, a 1996 federal law that defined marriage as only a union between a man and a woman for every federal purpose. That one provision reached into more than 1,000 federal laws and regulations.1Justia. United States v. Windsor
Edith Windsor brought the case after her spouse, Thea Spyer, died in 2009. The couple had married legally in Canada and lived in New York, which recognized their marriage. Because federal law refused to, Windsor owed $363,053 in estate taxes that a surviving spouse in a different-sex marriage would never have paid.1Justia. United States v. Windsor
The Court held that Section 3 violated the Fifth Amendment’s guarantee of equal protection. The majority found that the law singled out a class of people whose marriages were valid under state law and imposed a separate, lesser federal status on them.2Library of Congress. United States v. Windsor
After Windsor, legally married same-sex couples could file joint federal tax returns, claim the unlimited marital estate tax deduction, access federal employee health insurance for spouses, and receive Social Security survivor benefits. The ruling was deliberately narrow, though. It required the federal government to respect state-recognized marriages but did not require any state to issue marriage licenses to same-sex couples. That gap set up the next case.
Obergefell Made Marriage a Nationwide Right
Obergefell v. Hodges consolidated lawsuits from couples in Michigan, Kentucky, Ohio, and Tennessee who had either been denied marriage licenses or whose out-of-state marriages were refused recognition by their home states. At the time, more than 30 states still had laws or constitutional amendments banning same-sex marriage.3Justia. Obergefell v. Hodges
On June 26, 2015, the Court ruled 5–4 that the Fourteenth Amendment requires every state both to license marriages between same-sex couples and to recognize those marriages when performed lawfully in another state. The decision rested on two clauses. The Due Process Clause protects the right to marry as a fundamental liberty, and the Equal Protection Clause forbids states from excluding same-sex couples from that right.3Justia. Obergefell v. Hodges
The Dissents and Why They Still Matter
All four dissenting justices wrote separately. Chief Justice Roberts argued that the Constitution does not contain an explicit right to same-sex marriage and that the question should have been left to voters and legislatures. Justice Scalia called the ruling an exercise of raw judicial power over the democratic process. Justice Thomas contended that the Due Process Clause protects only against government interference with liberty, not a right to government-granted benefits. Justice Alito argued that the majority had abandoned the traditional test for fundamental rights, which requires the right to be deeply rooted in the nation’s history.4U.S. Department of Justice. Obergefell v. Hodges
Those dissents took on new weight in 2022. Concurring in Dobbs v. Jackson Women’s Health Organization, Justice Thomas wrote that the Court should reconsider “all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”5Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization No other justice joined that portion of his opinion, and the Dobbs majority said its ruling should not cast doubt on precedents unrelated to abortion. Thomas’s concurrence was a direct catalyst for the Respect for Marriage Act later that year.
Pavan Extended Obergefell to Parental Rights
Two years after Obergefell, the Court applied it to a specific state practice. In Pavan v. Smith (2017), the justices reversed an Arkansas Supreme Court ruling that had allowed the state to exclude a birth mother’s female spouse from the child’s birth certificate. The per curiam opinion held that if a state lists a husband on the birth certificate of a child born to his wife regardless of biological connection, it must do the same for a female spouse.6Justia. Pavan v. Smith
The Court said birth certificates are among the rights states attach to marriage, and Obergefell entitles same-sex couples to the full set of those rights. In practical terms, that document is often the first proof used to establish legal parentage for school enrollment, medical consent, insurance coverage, and inheritance.
Even so, many family law attorneys still recommend that the non-biological parent in a same-sex marriage pursue a second-parent or stepparent adoption. A birth certificate is an administrative record that can be challenged. A court-issued adoption decree is far harder to overturn and carries more weight across state and national borders.
The Respect for Marriage Act
Congress passed the Respect for Marriage Act on December 13, 2022, repealing the remnants of DOMA and writing marriage protections into federal statute.7GovInfo. Public Law 117-228 – Respect for Marriage Act Constitutional rulings can be overturned by future Courts; a federal statute requires an act of Congress to undo.
The law works on two tracks. For federal purposes, it recognizes any marriage valid in the jurisdiction where it was performed, which covers taxes, benefits, and every other federal program.8Congress.gov. H.R. 8404 – Respect for Marriage Act For interstate purposes, it prohibits any person acting under state authority from denying full faith and credit to a marriage performed in another state based on the sex, race, ethnicity, or national origin of the spouses.9Office of the Law Revision Counsel. 28 USC 1738C – Certain Acts, Records, and Proceedings and the Effect Thereof
There is one critical limit. If Obergefell were overturned, the Act would not force states to issue new marriage licenses to same-sex couples. It guarantees recognition of marriages already performed, not the right to obtain a new license. The Act is a safety net for existing marriages, not a full replacement for the constitutional right Obergefell established.
The law also contains explicit protections for religious organizations. Nonprofit religious groups cannot be required to provide services, facilities, or goods for the celebration of any marriage, and any refusal on those grounds cannot be the basis for a lawsuit.8Congress.gov. H.R. 8404 – Respect for Marriage Act A state official who denies recognition to a valid out-of-state marriage can be sued by the U.S. Attorney General, and the harmed couple has a private right of action to sue directly in federal district court.9Office of the Law Revision Counsel. 28 USC 1738C – Certain Acts, Records, and Proceedings and the Effect Thereof
What Married Same-Sex Couples Get Under Federal Law
Taken together, these rulings and the statute give same-sex spouses the same federal rights and obligations as any other married couple.
Taxes
Married couples file federal income taxes as married, either jointly or separately. They qualify for the unlimited marital deduction, which lets spouses transfer any amount of assets to each other during life or at death without triggering federal gift or estate taxes. Couples who were married before Windsor and missed earlier joint filings may still amend returns within the general refund window of three years from filing or two years from paying the tax, whichever is later.10Internal Revenue Service. Same-Sex Marriages Now Recognized for Federal Tax Purposes
Social Security
A surviving spouse can receive Social Security survivor benefits based on the deceased spouse’s earnings record if the marriage lasted at least nine months before the death.11Social Security Administration. Survivors Benefits for Same-Sex Partners and Spouses A lower-earning spouse may collect spousal benefits worth up to 50 percent of the higher-earning spouse’s primary insurance amount at full retirement age.12Social Security Administration. Benefits for Spouses
Same-sex couples face one wrinkle other couples do not. If a spouse died before the state allowed same-sex marriage and the couple was legally married for fewer than nine months, survivor benefits were often denied. Under settlements in Ely v. Saul and Thornton v. Commissioner of Social Security, the Social Security Administration now considers whether unconstitutional state bans prevented the couple from marrying earlier, and may credit that time toward the nine-month requirement.11Social Security Administration. Survivors Benefits for Same-Sex Partners and Spouses
Immigration
A U.S. citizen or lawful permanent resident can petition for a same-sex spouse to receive a green card using the same Form I-130 process available to any married couple.13U.S. Citizenship and Immigration Services. Bringing Spouses to Live in the United States as Permanent Residents USCIS applies the same fraud-screening standards regardless of the spouses’ sex.
Workplace Benefits
The Family and Medical Leave Act recognizes same-sex spouses, giving the same unpaid, job-protected leave to care for a spouse with a serious health condition. FMLA defines “spouse” based on the law of the state where the marriage was performed, so a couple married in any U.S. state qualifies regardless of where they now live.14U.S. Department of Labor. Fact Sheet 28L – Leave Under the Family and Medical Leave Act for Spouses Same-sex spouses also qualify as beneficiaries under COBRA, which requires employers with 20 or more employees to offer continued health insurance after a qualifying event such as job loss or divorce.
Where Protections Are Still Incomplete
A few gaps survive the combination of constitutional rulings and federal legislation.
Obergefell binds every state government but does not automatically apply to federally recognized tribal nations. The Bill of Rights and the Fourteenth Amendment restrict state and federal governments, not tribal governments. Tribes have their own civil rights statute, the Indian Civil Rights Act, with due process and equal protection language, but tribal courts interpret those provisions on their own terms. At least 13 tribes are known to allow same-sex marriage under tribal law; others have not addressed the issue or have restrictions in place.
Several states still have pre-Obergefell bans on same-sex marriage written into their state constitutions or statutes. Those provisions are unenforceable under current precedent, but they remain on the books. If Obergefell were ever overturned, those dormant bans could become active again. The Respect for Marriage Act would still require those states to recognize existing same-sex marriages performed elsewhere, but would not compel them to issue new licenses.
No U.S. court ruling binds a foreign government. Dozens of countries do not recognize same-sex marriages, which can complicate travel, property ownership abroad, and emergency medical decisions. That is one of the strongest reasons family law practitioners recommend second-parent adoption for children of same-sex couples: an adoption decree carries more weight internationally than a birth certificate listing two parents of the same sex.