Is same sex marriage legal in all 50 states?
The Senate on Tuesday passed landmark legislation to protect same-sex marriage at the federal level, shielding the right against concerns that the Supreme Court could undercut it.
Congress moved to codify same-sex marriage after the Supreme Court’s decision earlier this year to overturn decades of precedent for the right to abortion in Roe v. Wade — when Justice Clarence Thomas suggested the court could also revisit the right to same-sex marriage in Obergefell v. Hodges.
The proposal, which passed the House this summer, now heads back to the lower chamber for a second vote. If it clears again, it’ll head to President Biden’s desk for his signature.
Here’s the status of same-sex marriage rights in the U.S. right now:
Obergefell v. Hodges is still protecting same-sex marriage
In the absence of a Supreme Court decision to overturn its 2015 ruling in Obergefell, the right to same-sex marriage is still protected nationwide.
But if Obergefell were to fall, the regulation of same-sex marriage would be turned over immediately to individual states, as the regulation of abortion was turned over to the states after the court’s call to cut Roe.
The congressional push to codify same-sex marriage came on the heels of Justice Thomas’ suggestion that the court should “reconsider” cases that had affirmed LGBTQ rights and the right to access contraceptives, comments that were seen by many as a red flag for the future cases.
Of course, a relevant case would first need to work its way upward through the lengthy legal process to make it to the nation’s highest court — but if one does, the bench’s conservative majority could decide to undercut Obergefell.
The Respect for Marriage Act wouldn’t have the same force as Obergefell to require all states to allow same-sex marriage, but it would require states to recognize same-sex marriages from places where it’s legal. The proposal would also repeal the 1996 Defense of Marriage Act, which established a narrow federal definition of marriage as between a man and a woman.
Some states legalized same-sex marriage even before Obergefell
Massachusetts became the first state to legalize same-sex marriage in 2003, when the state’s Supreme Judicial Court ruled its constitution afforded the right, according to Pew Research.
Some states, like New Jersey and New Hampshire, first allowed same-sex couples to enter into civil unions, or a partnership status not recognized by the federal government, before eventually moving to legalize marriage.
Connecticut followed Massachusetts in legalizing same-sex marriage in 2008, and California had a brief thwarted legalization period. Three more states — Iowa, New Hampshire and Vermont — plus Washington, D.C., legalized the marriages in 2009, according to Pew Research.
Over the next few years, before Obergefell, same-sex marriage made significant strides as a number of other states passed bills to legalize it or saw court rulings that struck down existing bans before the Supreme Court made all bans unconstitutional in 2015.
More than 30 states still have same-sex marriage bans on the books
A Supreme Court decision to overturn Obergefell wouldn’t likely affect the states that had legalized same-sex marriage beforehand, but the move would greenlight states that had existing bans on the books.
According to Democratic Legislative Campaign Committee research earlier this year, 32 states have same-sex marriage bans in their state constitutions and/or legislation, and some 205 million Americans are living in places where the Supreme Court could make same-sex marriage immediately illegal.
The National Conference of State Legislatures earlier this year estimated, if Obergefell is overturned, same-sex marriage would likely remain legal in 15 states, plus Washington, D.C., and five U.S. territories.
Same-sex marriage would likely become illegal in other states where a Supreme Court ruling could breathe new life into existing bans.
Americans’ support for same-sex marriage legalization is high
Amid concerns about the status of LGBTQ rights nationwide and in the wake of worries about Obergefell, Americans’ support for the legalization of same-sex marriage has reached high points.
A Gallup poll released in June found support legalizing same-sex marriage was on the uptick, increasing 10 percentage points between 2015 and 2022 to reach a new high of 70 percent.
A Pew Research poll conducted in October found that a majority of Americans (61 percent) think legalization is good for society, with 36 percent saying the move would be “very” good.
Biden has praised the Respect for Marriage Act and encouraged congressional progress on the bill.
“Love is love, and Americans should have the right to marry the person they love,” Biden said last month after the Senate voted to start debate on the bill.
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