What systemic legal and economic ramifications could arise if the Supreme Court overturns the nationwide same‑sex marriage ruling, particularly for corporate benefits and state civil‑rights statutes?
An overturn of the U.S. Supreme Court's decision in Obergefell v. Hodges would trigger widespread and systemic legal and economic ramifications, replacing a uniform national standard with a complex patchwork of state laws, federal statutory protections, and new legal conflictsFact Check: Which states have laws in place to protect gay marriag...factually . The reversal would not be a simple return to the pre-2015 legal environment but would instead create a novel landscape shaped by subsequent legislation like the Respect for Marriage Act and judicial rulings such as Bostock v. Clayton CountyWill Supreme Court Overturn the Right to Same-Sex Marriage?pzlaw +1. This would generate significant compliance costs and legal risks for corporations and profoundly destabilize a wide array of civil rights for same-sex couples and their families at the state levelEmployee Benefits After The Supreme Court’s Same-Sex Marriage ...varnumlaw +1.
An overturn of Obergefell would not institute a nationwide ban but would return the authority to regulate marriage to individual statesWill Supreme Court Overturn the Right to Same-Sex Marriage?pzlaw . This would create immediate divergence between states with pre-existing prohibitions and those that have affirmatively protected marriage equality.
At least 32 states retain constitutional amendments or statutes banning same-sex marriage, which were rendered unenforceable by Obergefell but would become active law upon its reversalHere's where same-sex marriage would be banned without Obergefellaxios +1. These states possess a combination of constitutional provisions and statutes that would bar same-sex marriagesSame-sex marriage would be illegal in 25 to 32 states if the Supreme Court overturned Obergefell - Poynterpoynter .
States with such laws on their books include:
Conversely, a number of states have affirmatively codified the right to same-sex marriage into their own laws or constitutions, which would protect that right within their borders regardless of a Supreme Court overturnWithout Obergefell, Most States Would Have Same-Sex ...stateline . These states acted either through legislation or state court rulings prior to or independent of ObergefellObergefell v. Hodges | 576 U.S. 644 (2015) | Justia U.S. Supreme Court Centerjustia .
States with independent legal protections include:
The Respect for Marriage Act (RFMA), signed into law in 2022, provides a critical statutory backstop but does not fully replicate the protections of ObergefellWill Supreme Court Overturn the Right to Same-Sex Marriage?pzlaw +1. The RFMA repeals the Defense of Marriage Act (DOMA) and establishes two main protectionsH.R.8404 - 117th Congress (2021-2022): Respect for Marriage Act | Congress.gov | Library of Congresscongress +1.
However, the RFMA has a critical limitation: it does not require any state to issue a marriage license to a same-sex couple if doing so would violate state lawARTICLE THE RESPECT FOR MARRIAGE ACT: IS IT REALLY A PRO-LGBTQ+ ACT?cornell +1. In a post-Obergefell scenario, states with reactivated bans could refuse to grant new marriage licenses to same-sex couples, forcing them to incur the cost and inconvenience of traveling elsewhere to marryCongress Repeals the Defense of Marriage Actjustia .
The re-emergence of a patchwork of state marriage laws would impose significant administrative costs, compliance burdens, and legal risks on employers, particularly those operating in multiple statesEmployee Benefits After The Supreme Court’s Same-Sex Marriage ...varnumlaw .
Prior to Obergefell, multi-state employers faced considerable "headaches" managing benefits due to the fractured legal landscapeEmployee Benefits After The Supreme Court’s Same-Sex Marriage ...varnumlaw . An overturn would reintroduce many of these challenges:
A post-Obergefell environment would create direct conflicts between revived state marriage bans and federal laws governing employee benefits and discrimination, posing a major legal risk for corporations.
ERISA Preemption: The Employee Retirement Income Security Act (ERISA) creates a crucial distinction between plan types.
Title VII Discrimination: The Supreme Court's 2020 decision in Bostock v. Clayton County held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and gender identity3 Checklists for Avoiding LGBTQ Discrimination in Your ...shrm +1. This protection extends to "fringe benefits," which include health and retirement plansSupreme Court Holds Employers Cannot Discriminate ...jdsupra +1.
The de-recognition of same-sex marriage at the state level would dismantle a wide array of ancillary rights and protections that are automatically conferred by marital status.
Marital status confers numerous state-level rights beyond the marriage license itselfARTICLE THE RESPECT FOR MARRIAGE ACT: IS IT REALLY A PRO-LGBTQ+ ACT?cornell . In states that reactivate bans, new same-sex couples unable to marry in-state would be denied this "constellation of benefits," including:
While the RFMA would require states to recognize out-of-state marriages, enforcing these rights within a hostile state would almost certainly require extensive and costly litigationWill the Supreme Court Respect the Respect for Marriage Act? | Michael C. Dorf | Verdict | Legal Analysis and Commentary from Justiajustia .
One of the most profound impacts would be the destabilization of parental rights for non-biological parents.
Should Obergefell be overturned, existing marriages would generally remain validWill Supreme Court Overturn the Right to Same-Sex Marriage?pzlaw . There are strong legal arguments against the retroactive invalidation of a marriage that was legally performed. Historical precedent, such as the aftermath of California's Proposition 8, shows that courts have upheld the validity of marriages performed before a ban was enactedThe Supreme Court, State Courts, and the Future of Same-Sex ...duke .
Furthermore, the Respect for Marriage Act provides a powerful safeguard. It requires all states to recognize marriages that were validly performed in other jurisdictionsWill Supreme Court Overturn the Right to Same-Sex Marriage?pzlaw +1. As all existing same-sex marriages in the U.S. were legally valid where and when they were performed, other states and the federal government would be statutorily required to continue recognizing themWill Supreme Court Overturn the Right to Same-Sex Marriage?pzlaw . While a state could attempt to invalidate in-state marriages, this would face significant constitutional due process challenges and would not affect the federal and interstate recognition mandated by the RFMA.