Same-Sex Marriage: Now the Law of the Land

This means that all Americans, regardless of gender or sexual orientation, can exercise their right to marry anywhere in the United States.

By , Attorney | Updated by Stacy Barrett, Attorney

Updated December 14, 2022

In 2004, same-sex marriage was legal in just one state. But by 2015, all Americans had the right to marry, no matter their sexual orientation or gender identity, after the U.S. Supreme Court issued its landmark decision in Obergefell v. Hodges, 576 U.S. 644.

Same-sex and interracial couples gained further protection when the Respect for Marriage Act (RFMA) became federal law in December 2022. RFMA requires states to recognize the validity of out-of-state marriages, including same-sex and interracial unions. Lawmakers were motivated to pass the law after the Supreme Court overturned Roe v. Wade, triggering fears that the Court might reconsider marriage equality rights next.

Same-Sex Marriage Is Legal in All 50 States

On June 26, 2015, the U.S. Supreme Court ruled 5-to-4 that same-sex couples have a constitutional right to marry under the 14th Amendment and that states cannot ban same-sex marriage. Justice Anthony Kennedy delivered the opinion for the majority of the Court, which included Justices Ginsburg, Breyer, Sotomayor, and Kagan.

Kennedy opened the opinion by writing, "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons . . . to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex."

The Court ruled that the right to marry is a fundamental right, and under the 14th Amendment protections, "couples of the same sex cannot be deprived of that right and that liberty."

In his closing paragraph on love and marriage, Justice Kennedy wrote:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. As some of the petitioners in this case demonstrate, marriage embodies a love that may endure even past death . . . . Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to lives in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants that right.

States Must Recognize Out-of-State Marriages

The Court also found that all states must recognize same-sex marriages validly performed in other states. On this point, the Court said, "Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another state."

Under this part of the ruling, same-sex couples legally married in one state, such as California, can move to any other state in the U.S. and expect to have their marriages recognized for all purposes, including:

State laws that govern family and divorce matters, such as custody rights and responsibilities, property division, and spousal support will now apply equally to opposite-sex and same-sex married couples.

Prior to Obergefell, the following 37 states and D.C. had legalized same-sex marriage: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Indiana, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, the state of Washington, West Virginia, Wisconsin, and Wyoming.

Some states had also offered same-sex couples the option of entering into civil unions or domestic partnerships, which extend many of the rights and obligations of marriage. With the legalization of same-sex marriage across the U.S., it's unclear how long any states will continue to offer civil unions or domestic partnerships. Some newly-minted marriage equality states required civil unions and domestic partnerships to be merged or converted into marriages, and other states may now follow suit.

Obergefell Decision Doesn't Apply to Religious Organizations

This decision directly affects government offices that grant marriage licenses, but as Justice Kennedy emphasized, religious organizations will not be forced to condone same-sex marriage. State and local government agencies, such as county recorders and clerks must issue marriage licenses to same-sex couples, but the ruling does not require churches to perform marriage ceremonies for same-sex couples.

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