Same-Sex Marriage Cases: Obergefell, Windsor, and Bostock

The same-sex marriage cases that matter most are Goodridge v. Department of Public Health (2003), United States v. Windsor (2013), Obergefell v. Hodges (2015), Pavan v. Smith (2017), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), Bostock v. Clayton County (2020), and 303 Creative LLC v. Elenis (2023). Together with the Respect for Marriage Act of 2022, they established the nationwide right to marry, defined how federal and state governments must treat those marriages, and drew the current boundaries around religious objections and parental rights.¹

Goodridge v. Department of Public Health (2003)

The first breakthrough came from a state court. Seven couples in Massachusetts had been denied marriage licenses and challenged the exclusion. In 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that barring same-sex couples from civil marriage violated the state constitution, finding no legitimate public health, safety, or welfare reason to justify the ban.²

Massachusetts became the first state to legalize same-sex marriage. Over the next twelve years, courts in Connecticut, Iowa, California, and elsewhere reached similar conclusions under their own constitutions, building the legal reasoning that federal courts would eventually draw on.

United States v. Windsor (2013)

Even as states began recognizing same-sex marriages, the federal government did not. The Defense of Marriage Act, passed in 1996, defined marriage for all federal purposes as a union between one man and one woman. Codified at 1 U.S.C. § 7, that definition reached across the tax code, immigration law, Social Security, and more than a thousand other federal provisions.³

Edith Windsor had married her wife in Canada and lived in New York, which recognized the marriage. When her spouse died, Windsor was denied the federal estate tax exemption available to surviving spouses. In 2013, the Supreme Court ruled 5–4 that DOMA’s federal marriage definition violated Fifth Amendment protections of equal liberty by stripping federal benefits from marriages that states had chosen to recognize.⁴

The IRS responded within weeks. Revenue Ruling 2013-17 recognized all legally married same-sex couples for federal tax purposes and adopted a “place of celebration” rule, meaning a marriage was recognized based on where it was performed, not where the couple lived.⁵ A couple married in Massachusetts stayed married for federal tax purposes even if they moved to a state that still refused to recognize their union.

Obergefell v. Hodges (2015)

Windsor settled the federal question but left a messy patchwork at the state level. Some states issued licenses to same-sex couples, others refused, and couples who moved could find their marriage legally invisible. Obergefell v. Hodges consolidated challenges from Michigan, Kentucky, Ohio, and Tennessee, where same-sex couples had been denied marriage licenses or recognition of marriages from elsewhere.

The Court’s analysis rested on two provisions of the Fourteenth Amendment. The Due Process Clause protects fundamental liberties from government interference, and the Equal Protection Clause forbids laws that treat similarly situated people differently without adequate justification. The Court identified four reasons marriage qualifies as a fundamental right: it is tied to individual autonomy and personal choice, it supports a unique two-person bond, it safeguards children and families, and it serves as a keystone of the country’s social order. Each reason applied with equal force to same-sex couples.¹

The 5–4 decision on June 26, 2015, required every state to license marriages between same-sex couples on the same terms as opposite-sex couples and to recognize lawful same-sex marriages performed in other states. The patchwork ended overnight.

The Respect for Marriage Act (2022)

Obergefell is a constitutional ruling, which means only the Supreme Court or a constitutional amendment can change it. In 2022, Justice Clarence Thomas wrote in a concurrence to Dobbs v. Jackson Women’s Health Organization that the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”⁶ No other justice joined that portion, but it raised alarms about the durability of Obergefell.

Congress responded with the Respect for Marriage Act, signed on December 13, 2022. The law did two things. It replaced DOMA’s federal definition of marriage with a new version of 1 U.S.C. § 7, which treats a person as married for all federal purposes if the marriage is between two individuals and was valid where it was performed.⁷ It also rewrote 28 U.S.C. § 1738C to bar any state from denying full faith and credit to a marriage from another state based on the sex, race, ethnicity, or national origin of the spouses, with enforcement available through lawsuits by the Attorney General or by harmed individuals.⁸

The statute also carves out religious liberty. Religious nonprofits and their employees cannot be required to provide services for the celebration of any marriage that conflicts with their sincerely held beliefs, and no lawsuit can arise from that refusal.⁹ A church can decline to host a same-sex wedding without legal liability. A government clerk cannot refuse to issue a marriage license.

Pavan v. Smith and the Parental Rights Gap

Obergefell guaranteed the right to marry. It did not directly address the legal relationship between a non-biological parent and the couple’s children, and this is where many families run into trouble they did not expect.

In 2017, the Supreme Court closed one piece of the gap in Pavan v. Smith, ruling that states must list a same-sex spouse on a child’s birth certificate if they would list an opposite-sex spouse in the same situation. Denying that listing violated Obergefell’s guarantee that same-sex couples receive the same “constellation of benefits” that states link to marriage.¹⁰

A birth certificate listing is not the same as an unshakeable legal parent-child relationship. Each state has its own parentage laws, and the marital presumption of parentage can be challenged and overturned in court. Some states allow that presumption to be defeated by showing the listed parent has no genetic connection to the child. If a family moves from a state with strong protections to one with weaker ones, the non-biological parent’s rights may not travel with them.

Family law attorneys widely recommend that the non-biological parent complete a second-parent adoption, sometimes called a confirmatory adoption. The process typically costs between $700 and $5,000 in legal and filing fees. It creates a court-ordered parent-child relationship that every state must honor under the Full Faith and Credit Clause. Without it, a non-biological parent could lose custody rights if the couple separates, the legal parent dies, or a relative challenges the parent-child relationship.

Religious Objection Cases: Masterpiece and 303 Creative

Two Supreme Court decisions sketch the current boundary between marriage rights and religious objections.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court ruled 7–2 in favor of a baker who refused to create a wedding cake for a same-sex couple. The ruling was narrow. The Court found that the Colorado Civil Rights Commission had shown open hostility toward the baker’s religious beliefs during its proceedings, violating the government’s obligation of religious neutrality under the Free Exercise Clause. It did not create a blanket right for businesses to refuse service.¹¹

Five years later, 303 Creative LLC v. Elenis (2023) went further. A website designer argued she should not be forced to create wedding websites celebrating same-sex marriages. The Court ruled 6–3 that the First Amendment prohibits the government from compelling a person to create expressive content that conflicts with their beliefs. Because custom websites involve original expression, Colorado could not use its public accommodations law to force the designer to speak a message she disagreed with.¹² The ruling applies to expressive services like custom artwork, writing, or design, not to routine commercial transactions like selling off-the-shelf goods.

Bostock v. Clayton County and Workplace Protections

Marriage rights addressed what happens at the courthouse. The workplace had its own case. In Bostock v. Clayton County (2020), the Supreme Court held that Title VII of the Civil Rights Act of 1964, which bans employment discrimination “because of sex,” necessarily covers sexual orientation and gender identity. The reasoning was straightforward: you cannot fire a man for being attracted to men if you would not fire a woman for the same thing without taking sex into account.¹³ The decision applies to employers covered by Title VII, generally those with 15 or more employees.

Could Obergefell Be Overturned

Justice Thomas’s 2022 concurrence in Dobbs raised the possibility, but no other justice joined that portion of the opinion. The Dobbs majority explicitly stated that “nothing in the Court’s opinion should be understood to cast doubt on precedents that do not concern abortion.”⁶

The Respect for Marriage Act exists because of that uncertainty. Even if the Supreme Court were to overturn Obergefell, the federal statute would still require every state to recognize same-sex marriages performed in any state that continues to issue them, and federal agencies would still treat those marriages as valid.⁸ The statute cannot force a state to issue new marriage licenses, since that was the constitutional holding in Obergefell, but it locks in recognition of existing marriages and interstate portability. The legal foundation for same-sex marriage now rests on two independent pillars: the Court’s constitutional interpretation and a federal statute Congress would have to affirmatively repeal.

1
Justia U.S. Supreme Court Center. Obergefell v. Hodges, 576 U.S. 644 (2015)
2
Justia. Goodridge v. Department of Public Health, 440 Mass. 309
3
Office of the Law Revision Counsel. 1 USC 7 – Definition of Marriage and Spouse (2010 Edition)
4
Justia U.S. Supreme Court Center. United States v. Windsor, 570 U.S. 744 (2013)
5
Internal Revenue Service. Revenue Ruling 2013-17
6
Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, No. 19-1392
7
Office of the Law Revision Counsel. 1 USC 7 – Marriage
8
Office of the Law Revision Counsel. 28 USC 1738C – Certain Acts, Records, and Proceedings and the Effect Thereof
9
Congress.gov. Public Law 117-228 – Respect for Marriage Act
10
Justia U.S. Supreme Court Center. Pavan v. Smith, 582 U.S. 16-992 (2017)
11
Justia U.S. Supreme Court Center. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. 16-111 (2018)
12
Justia U.S. Supreme Court Center. 303 Creative LLC v. Elenis, 600 U.S. 21-476 (2023)
13
Justia U.S. Supreme Court Center. Bostock v. Clayton County, 590 U.S. 17-1618 (2020)