The History of Same-Sex Marriage in the United States, and What Might Come Next 

In June 2003, the Supreme Court struck down laws criminalizing sodomy and recognized a constitutional right for adults to engage in private, consensual sexual conduct. I was then a summer intern in Lambda Legal’s Chicago office. The afternoon Lawrence v. Texas was handed down, I listened as the LGBTQ+ rights movement’s major strategists discussed next moves: They would slowly begin to identify test cases in jurisdictions that had favorable state constitutional provisions to uphold marriage between two people of the same sex.

While the U.S. public was not privy to that conversation, same-sex marriage was soon a major topic in both judicial and public fora. Later that same year, the Massachusetts Supreme Judicial Court handed down Goodridge v. Department of Public Health, holding that same-sex couples could no longer be excluded from civil marriage rights in the state. The first marriage licenses were issued on May 17, 2004, a date which LGBTQ+ communities throughout the world have recognized for decades as the International Day Against Homophobia, Biphobia, and Transphobia.

Between Lawrence, Goodridge, and the eventual U.S. Supreme Court decision of Obergefell v. Hodges — which made marriage equality the law of the land throughout the United States 10 years ago today — state-level action through the courts, legislatures, and popular vote created a patchwork of legality for both same-sex couples desiring legal union through marriage and married couples crossing state borders.

A particularly interesting constellation of legal acrobatics characterized California’s path to legalizing same-sex marriage. In May 2008, the California Supreme Court ruled that same-sex couples had a right to marry in the state. But by November 2008, voters passed by referendum Proposition 8 — widely known as Prop 8 — adding restrictive language to the state constitution that “only marriage between a man and a woman is valid or recognized in California.” After the state supreme court upheld legal challenges to Prop 8, advocates of same-sex marriage challenged it under the U.S. Constitution. A federal district court ruled Prop 8 unconstitutional, finding it violated the 14th Amendment. The state government of California didn’t want to defend Prop 8, and did not appeal. However, opponents of marriage equality intervened to appeal, and the U.S. Court of Appeals for the Ninth Circuit reached a similar conclusion to the district court, though on more narrow grounds. When the same advocates appealed to the U.S. Supreme Court, the Court on June 26, 2013 — 12 years ago today — found that they did not have standing and, soon after, marriage equality was again part of the legal fabric of California.

The path to marriage equality was more straightforward in Iowa. In August 2007, a lower court ruled in favor of six same-sex couples in their petition to access the state institution of marriage in Varnum v. Brien. A year and a half later, the Iowa Supreme Court upheld the lower court’s ruling. Marriage equality has remained durable and unchallenged in Iowa ever since.

While the right to same-sex marriage worked its way through courts and ballot boxes, same-sex couples lived in uncertainty. During that time, I obtained a master’s in legal anthropology, focusing on the pivot from decriminalization to the push for marriage equality. I finished law school and fell in love with a man who happened to be German. As we completed our education in 2009, we needed to find a place to start our lives together. With no legal path for him to secure U.S. residency status based on our relationship, we landed in Europe.

But then, the Supreme Court agreed to hear a package of cases that would determine access to marriage equality for same-sex couples that would apply in all U.S. jurisdictions. Building on narrow holdings like U.S. v. Windsor, which gave federal protections to same-sex couples legally married in those states that had marriage equality, advocates and same-sex couples now asked the Court to rule that states must issue marriage licenses to same-sex couples and recognize same-sex marriages performed in other states.

On June 26, 2015, Obergefell came down. By a 5–4 margin, marriage equality became the law of the land in the United States.

However, just as members of the LGBTQ+ community planned their overarching strategy to fight for their rights after the Supreme Court decriminalized sodomy, opponents of marriage equality have organized to use local and state institutions to restrict Obergefell’s reach. Multiple religious exemption statutes provide protection to purveyors of services — such as wedding websites, venues, and bakeries, in state like Colorado, Michigan, and New Mexico — to refuse those services to same-sex couples. While two individuals can get married under the law, they are not necessarily able to do so with the pomp and circumstance they may have dreamed of.

Recently, the Supreme Court issued decisions overturning cases decided within a generation, resulting in an upheaval of jurisprudence that depended on the legal reasoning underpinning those cases. Dobbs v. Jackson’s Women’s Health Organization, overturning Roe v. Wade and ending federal constitutional protection for abortion, is the most well-known of those reversals. State officials, medical practitioners, and people who may need reproductive care are still struggling to understand the implications within and across state borders. And LGBTQ+ people, along with their friends and loved ones, are watching the Supreme Court with apprehension, wondering if Obergefell might be next to fall. Indeed, writing separately in Dobbs, Thomas urged the Court to reconsider Obergefell.

If Obergefell were overturned, the states would again become a patchwork of laws. Same-sex couples could marry in some states while other states could not only refuse to issue licenses but also could regress to non-recognition of legal marriages performed elsewhere.

In our federalist system, when Obergefell mandated marriage equality through a judicial decision, the courts acted as a blunt tool, not a fine scalpel. On the basis of the decision, state officials acquiesced to the mandate to allow access to a legal institution to all citizens, albeit sometimes reluctantly. Most states did not repeal the anti-equality statutes or amendments on their books.

Over 30 states have so-called zombie laws that would reactivate if Obergefell were overturned, immediately affecting marriage equality across the United States. Three states have constitutional amendments that will restrict marriage to between one man and one woman. Seven states have laws at the statutory level that will do the same. And about half the states have taken the belt and suspenders approach, codifying discrimination against same-sex couples in both statutes and amendments, with various and unclear consequences on the recognition of marriages that were previously performed in those states, the treatment of marriages performed out of state after the laws reanimate, and the status of hundreds of thousands of individuals’ relationship to their spouse. (This interactive map demonstrates where these laws will reanimate.)

On the 10th anniversary of the Obergefell decision, it’s my hope that the challenges to marriage equality currently moving through the courts reach a Supreme Court that confirms Obergefell as good law. If they overturn precedent, the implications on the lives of the hundreds of thousands of married couples and their families would be far reaching. The United States would revert to an administrative jungle in which legally united couples would have shifting status depending on which state flag flies above their capitol. I don’t want to return to a world where I would have to consider leaving the country to have my marriage legally respected and protected.

Jordan Thompson Long is senior associate director of the Human Rights Program at the Carter Center. Previously, he was at senior counsel for the Center for Human Rights at the American Bar Association and associate director of HRC Global at the Human Rights Campaign.