Navigating the Landscape: Understanding Same-Sex Marriage Laws Post-Obergefell
The journey toward marriage equality in the United States has been a long and often contentious one. While the landmark 2015 Supreme Court decision in Obergefell v. Hodges federally legalized same-sex marriage, making it the law of the land across all 50 states, the legal and cultural reverberations of this monumental ruling continue to shape our understanding of marriage rights. Even today, many states still have outdated laws and constitutional amendments on their books that, while currently unenforceable, could theoretically resurface if the legal landscape were to shift. So, what does this complex legal tapestry mean for same-sex couples and their rights? Let's dive in.
The Shifting Tides of Marriage Equality
Before the Obergefell decision, the legality of same-sex marriage was a patchwork affair, varying significantly from state to state. This created a confusing and often discriminatory environment for couples seeking to formalize their unions. States employed two primary methods to ban same-sex marriage: statutory bans and constitutional amendments.
Statutory bans were typically enacted through legislative processes, while constitutional amendments required a more robust, statewide approval. The earliest efforts to explicitly prohibit same-sex marriage began in the mid-20th century. In 1947, Maryland became the first state to enact a law explicitly defining marriage as between a man and a woman. Other states soon followed suit, with Virginia, Arizona, and Oklahoma passing similar laws in the late 1940s and early 1950s. Florida, California, Wyoming, and Utah enacted their own statutory bans in the 1970s.
The landscape shifted further in response to a 1993 Hawaii Supreme Court ruling that suggested a prohibition on same-sex marriage could violate the state's equal protection clause. This prompted a flurry of legislative activity. Utah was among the first to enact a statutory ban in 1995, and in 1996, Congress passed the Defense of Marriage Act (DOMA), federally defining marriage as a union between one man and one woman. Hawaii itself moved to amend its constitution in 1998, allowing the legislature to ban same-sex marriage, which it promptly did through a referendum. Ultimately, over 30 states followed Hawaii's lead, adopting constitutional amendments to cement marriage bans.
Why Do These Old Laws Persist?
Despite the Supreme Court's clear directive in Obergefell v. Hodges, many of these state-level prohibitions, particularly constitutional amendments, remain on the books. Why? The reasons are varied and often rooted in political inertia and the sheer administrative effort involved in legislative change.
In some instances, there's a distinct lack of political will to formally remove these outdated statutes. Removing a constitutional amendment typically requires a multi-step process: passage by both legislative chambers, and often, approval by voters in a statewide referendum. This is a labor-intensive undertaking, and for many states, these unenforced bans are not prioritized. Think of it like having an old, unused phone line connected to your house - it's still there, but no one actively uses it, and the effort to disconnect it might seem like more trouble than it's worth.
Furthermore, the existence of these laws, even if unenforceable, continues to signal the deeply politicized nature of marriage equality. For states where efforts to pass broader LGBTQ+ nondiscrimination protections have faced significant hurdles, the continued presence of marriage bans on the books can be seen as a symbolic resistance to full equality.
Echoes of Resistance: Compliance Issues Post-Obergefell
The Obergefell decision was a watershed moment, but its implementation hasn't always been seamless. In the years following the ruling, there have been notable instances where state and local officials have attempted to circumvent or deny marriage licenses to same-sex couples, citing religious objections.
Perhaps the most high-profile case was that of Kim Davis, a Kentucky county clerk who famously refused to issue marriage licenses to same-sex couples in 2015, citing her religious beliefs. Her stance led to her incarceration for contempt of court. While Davis eventually retired after losing her re-election bid, her case highlighted the persistent tension between religious freedom and the legal mandate of marriage equality. A subsequent ruling by the 6th U.S. Circuit Court of Appeals affirmed that while Davis was immune from lawsuits as a county official, she could be sued in her individual capacity for failing to comply with the law.
Similarly, in Alabama, former Chief Justice Roy Moore faced suspension from his judicial duties for issuing an order to probate judges to stop issuing marriage licenses to same-sex couples, even after the Supreme Court ruling. More recently, a judge in Texas faced a public warning for her prolonged refusal to perform same-sex weddings, subsequently suing the state commission on judicial conduct, arguing her rights under the Texas Religious Freedom Restoration Act were violated. The state's Attorney General even declined to defend the agency in that lawsuit, citing conflicts with his constitutional views. These instances, while isolated, underscore the ongoing challenges in ensuring universal compliance with marriage equality laws.
Legislative Maneuvers: Attempts to Undermine Equality
Beyond individual acts of non-compliance, some states have seen legislative attempts to chip away at marriage equality or create loopholes. While direct reversal of the Obergefell decision is not legally feasible at the state level, proponents of restricting LGBTQ+ rights have introduced numerous bills designed to undermine the spirit of marriage equality.
For example, until recently, Colorado had legislation on its books that stipulated marriage was between one man and one woman. Advocates successfully blocked several bills aimed at enforcing these outdated statutes, including one that sought to ensure existing laws were followed regardless of judicial rulings. The fact that such bills are even introduced highlights the ongoing debate and the desire by some to push back against established rights.
Other states have seen proposals that leverage the concept of "separation of church and state" in ways that could potentially impact same-sex marriage recognition. Some bills have sought to require marriage license applicants to disclose their sexual orientation, raising concerns about potential misuse of this information, particularly in child custody cases.
The Current State of Affairs: Federal Protection and Evolving Public Opinion
It's crucial to reiterate that, as of now, same-sex marriages are licensed and recognized in all 50 U.S. states, the District of Columbia, and all U.S. territories except American Samoa. The federal protection established by Obergefell v. Hodges means no state can enact laws that prevent same-sex marriage. This means that even if a state has discriminatory statutes or constitutional amendments still on its books, they are legally unenforceable.
The broader societal acceptance of same-sex marriage has also dramatically increased. According to Gallup polls, public approval of same-sex unions has surged over the past two decades, with a significant majority of Americans now supporting marriage equality. This shift in public opinion has undoubtedly influenced the legal and political landscape, creating a more favorable environment for LGBTQ+ rights.
Even in states with a history of opposition, there's a clear trend towards greater acceptance and legal recognition. This is evident in the fact that many states have proactively updated their marriage laws to explicitly affirm same-sex marriage.
The Future of Marriage Equality: Vigilance and Advocacy
While the Obergefell decision brought about a national standard for marriage equality, the persistence of pre-existing bans and occasional legislative challenges serve as a reminder that progress is not always linear. The legal battles and debates surrounding same-sex marriage underscore the importance of continued advocacy and vigilance.
Understanding the historical context of these laws and the current legal framework is essential for appreciating the hard-won gains in marriage equality. As public opinion continues to evolve and legal protections are reaffirmed, the path forward suggests a strengthening of these rights. However, the existence of these old laws, however dormant, serves as a powerful reminder of how far we've come and the ongoing need to safeguard the rights and dignity of all individuals, ensuring that love and commitment are recognized and respected universally.