Before and After Obergefell v. Hodges: Developments in Same-Sex Marriage Laws
By Melissa McCall, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed July 17, 2023
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Same-sex marriage is now legal across the U.S., thanks to Obergefell v. Hodges. But, this wasn't always the case. The public fight for marriage equality in America lasted several decades, going back to Loving v. Virginia. Loving overruled laws banning interracial marriages, but it was just the beginning.
LGBTQ couples have always formed unions like civil marriage. But because tradition defined marriage as between a man and a woman, they could not marry. Many public officials relied on this traditional definition to deny marriage licenses to gay couples.
Through Obergefell, the U.S. Supreme Court legalized same-sex marriage. Obergefell gave finality to the fight for same-sex marriage equality. We can trace the history of same-sex marriage law through federal laws and Supreme Court decisions.
The following is a summary of same-sex marriage laws before and after the Obergefell decision.
Before Obergefell
The legal history of same-sex marriage did not begin with Obergefell. One of the earliest gay marriage cases, Baker v. Nelson, came out of Minnesota. While Baker did not resolve any issues on gay marriage, it is a starting point to examine the history of same-sex marriage law.
Baker v. Nelson
Baker was the first gay marriage case presented to the Supreme Court. In Baker, the plaintiff and his partner were a gay Minnesota couple that tried to get married in Minneapolis. Minnesota statutes at that time were silent on the issue of gay marriage.
But the clerk of the court refused to issue a marriage license, and the couple sued in district court. They lost and filed an appeal with the Minnesota Supreme Court. That court also ruled against them, and they appealed this loss to the U.S. Supreme Court. The Court dismissed their case because it did not present a "substantial federal question."
Massachusetts
Massachusetts was the first state to legalize gay marriage in 2004. Legalizing gay marriage in Massachusetts resulted from a favorable 2003 ruling of the Massachusetts Supreme Judicial Court (SJD) in Goodridge v. Department of Public Health.
Like Baker, this case involved marriage licenses. The respective counties in Goodridge denied petitioners marriage licenses because they were gay. The court noted that the impact of this denial was "tantamount to denying them access to civil marriage itself." The court ruled in favor of the plaintiffs, legalizing gay marriage throughout the state.
Defense of Marriage Act
In 1996, Congress passed the Defense of Marriage Act (DOMA) in 1996. Under DOMA, states could refuse to recognize same-sex marriages performed in other states. DOMA also defined marriage as between a man and a woman. DOMA affected federal laws where spousal benefits were an issue.
California and Proposition 8
In 2008 California became the second state to allow same-sex marriage with a favorable California Supreme Court ruling in In re Marriage Cases. The court found the state's ban on same-sex marriage violated the California constitution's equal protection clause. Shortly after this decision, Proposition 8 went on the ballot for the November 2008 election.
The goal of Proposition 8 was to amend the state constitution to define marriage as between a man and a woman.
Same-Sex Marriage Ban
Proposition 8, passed on Nov. 4, 2008, effectively banned same-sex marriages in California. Proposition 8 opponents challenged its validity on procedural grounds. The California Supreme Court confirmed its validity, and California amended its constitution, halting same-sex marriages in California.
Federal District Court Judge Walker found Prop 8 was unconstitutional because it violated constitutional due process and equal protection clauses. The Ninth Circuit affirmed the decision, which appealed the decision to the Supreme Court.
Restoring Same-Sex Marriage
In 2013, the U.S. Supreme Court ruled in Hollingsworth v. Perry that private parties lacked standing to defend a state constitutional amendment where the state refused to defend it. The Court dismissed the case for lack of standing. The original district court ruling remained intact; same-sex marriage was legal in California.
Marriage Alternatives
Between 2004, when Massachusetts legalized gay marriage, and 2015, when the Supreme Court struck down DOMA, many states and the District of Columbia allowed same-sex marriage. State laws varied in offering alternatives to civil marriage. Civil unions are one alternative to same-sex marriage offered in these states.
Domestic partnerships were another alternative to same-sex marriage. None of these options offered the dignity or full benefits and protections of marriage. Other states recognized domestic partnerships.
U.S. v. Windsor
U.S. V Windsor struck down sections of DOMA that discriminated against same-sex couples.
Edith Windsor inherited her spouse's estate and claimed a federal inheritance tax exemption as surviving spouse in Windsor. Although New York recognized them as a married couple, DOMA barred federal recognition of this marriage. The IRS denied her claim because she was not a spouse. Windsor paid more in federal taxes than she would have if the federal government recognized her marriage.
The Supreme Court found the sections of DOMA that limited marriage unconstitutional under the Fifth Amendment of the U.S. Constitution. Justice Anthony Kennedy wrote for the majority and concluded that New York protected a class of people, and DOMA took that protection away. This resulted in an unconstitutional violation of basic due process and equal protection.
Obergefell v. Hodges
On June 26, 2015, the U.S. Supreme Court ruled in favor of the plaintiffs in Obergefell. The Court concluded that states could not discriminate against same-sex couples under the Fourteenth Amendment to the U.S. Constitution. This meant states must issue marriage licenses to same-sex couples. They must also recognize legal same-sex marriages performed in another state.
Obergefell raised the following critical constitutional questions:
- Whether the Fourteenth Amendment requires a state to license a marriage between two people in a same-sex relationship; and
- Whether the Fourteenth Amendment requires a state to recognize a legal same-sex marriage performed out of state?
In a 5-4 decision, the Court answered yes to both questions. Justice Anthony Kennedy authored the majority opinion. He concluded marriage is a fundamental right that applies equally to same-sex couples.
The Court's four conservative justices-Chief Justice Roberts and Justices Alito, Scalia, and Thomas-dissented.
Post Obergefell
Although Obergefell legalized same-sex marriage, it was vulnerable to attack. In 2022, the Supreme Court overturned Roe v. Wade, the landmark reproductive rights case. In his concurring opinion, Justice Clarence Thomas suggested the High Court revisit past cases based on substantive due process.
Respect for Marriage Act
Lawmakers responded to Thomas' suggestion with the Respect for Marriage Act (RFMA). This marriage bill repealed DOMA and protected marriage rights for all Americans, regardless of sexual orientation or race.
The bill passed the House of Representatives, with 47 members of the GOP joining their peers across the aisle. The Senate majority leader then shepherded the bill through the Senate, where it had bipartisan support in its final passage. "Bipartisan support" refers to the agreement of members from both major political parties.
Twelve Republican senators joined their Democrat peers in approving the RFMA. These senators included:
- Tammy Baldwin of Illinois
- Robert Portman of Ohio
- Susan Collins of Maine
- Thom Tillis of North Carolina
- Mitt Romney of Utah
President Joe Biden signed the RFMA into law on Dec. 13, 2022.
There is an ongoing backlash to Obergefell. Some opponents of LGBTQ rights use religious liberty as a reason to ignore Obergefell. County clerks in states like Kentucky and Texas initially refused to issue marriage licenses to same-sex couples for faith-based reasons. Christian service providers, including a Colorado baker, have refused to provide services for same-sex marriages.
Get Legal Help for Your Upcoming Marriage
The law is clear: Same-sex marriage is legal in America. But despite these legal advancements, same-sex couples can still face unique challenges and hurdles when getting married.
If you and your partner have questions about your marriage rights, consider talking to a local family law attorney. An experienced attorney can help you understand your options and how to best protect your rights.
For all couples, marriage is more than just a commitment to a relationship—it's a legal contract. Meeting with an attorney prior to getting married can help you understand your legal rights and obligations of your upcoming nuptials. This is especially important if you or your partner have any debts, property, or child custody issues.
Can I Solve This on My Own or Do I Need an Attorney?
- Many people can get married without hiring legal help
- Marriages involving prenups, significant debt, child custody issues, and property questions may need an attorney
Get tailored advice and ask questions about getting married.
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