In which states could same-sex marriage be banned if the Supreme Court overturns Obergefell?

Last week, the House of Representatives voted to repeal the Defense of Marriage Act (DOMA) and codify the rights of same-sex couples to marry under federal law. The bill, the Respect for Marriage Act, now moves to the Senate, where the question of whether or not Democrats can get nine Republicans to vote yes, remains to be seen. So far, the three Republican senators who have said they would vote in favor of the bill are Rob Portman (R-OH), Susan Collins (R-ME), and Lisa Murkowski (R-AK). Thom Tillis (R-NC) has said he would most likely vote to approve the bill, but is still reviewing it.

Marriage equality became the law of the land in 2015 after the Supreme Court overturned Baker v. Nelson. In this case, the Minnesota Supreme Court found that discrimination in the distribution of marriage licenses on sexual orientation “does not offend” the constitution. The case, Obergafel v. Hodges, did not deal directly when the ability to acquire a marriage license; instead, it dealt with the consequences of not being able to obtain one. An Ohio couple, James Obergefell and John Arthur, married in Maryland, where gay marriage was legal. John Arthur was terminally ill, and after passing, his husband petitioned to have his name appear as his spouse on his death certificate. The case ended up before the Supreme Court after the state refused to honor the wishes of the deceased, which Ohio Judge Timothy Black said was unconstitutional.

Today, similar to Roe v. Wade, most states have laws against marriage between gay couples. In the case Obergefell is overturned, no federal laws protect same-sex marriages, which is why Congress is taking up the issue.

Which states have laws that would ban gay marriage?

Thirty-five states have banned same-sex marriage under their constitution or state law, and in some cases, both. Texas and Ohio have some of the strictest laws against same-sex marriage. These states do not recognize same-sex marriages that occur in states where they are legal and do not offer gay couples an alternative arrangement that would grant them the same legal protections as heterosexual couples.

With regard to state constitutions, Michigan and Virginia have the most severe bans which include the prohibition of marriages, civil unions, and any other “marriage-like” arrangement between people of the same sex.

In the states not listed above, in either, category create risks for the LGBTQ+ community in the case that the Supreme Court choses to take on a case that could lead to the overturning of Obergefell. So far, the Supreme Court has not announced any such cases that could lead to the overturning of Obergefell next year.