Following Donald Trump’s victory in the 2024 presidential election, some couples planning a same-sex wedding began to panic, fearing they would lose the right to marry.
A committed wedding planner wrote in Vogue how she and her friends plan to move forward with their marriages; a chaplain in Iowa helps dozens of couples plan expedited nuptials; defenders say they see a slight concern about marriage rights.
“People are very concerned, there’s no doubt about that,” Jennifer Pizer, legal director of the LGBTQ rights group Lambda Legal, told Vox.
These concerns stem from attacks by Trump and his allies on LGBTQ rights, even though the president-elect did not directly target same-sex marriage during his campaign. Trump instead anti-trans policy a central point of his rhetoric, and changes to LGBTQ rights appear more likely to focus on removing protections for trans people rather than eliminating same-sex marriage.
There are also two safeguards in place – a Supreme Court ruling and federal law – that make it more difficult to attack same-sex marriage, whether from the executive branch or elsewhere. Two major factors, however, worry LGBTQ rights advocates.
The first is the conservative composition of the Supreme Court. Same-sex marriage is protected in part by the 2015 Obergefell v. Hodges Supreme Court decision. Previously, the Supreme Court Justices Clarence Thomas And Samuel Alito openly expressed that they would like to see the 2015 again Oberfell decision – which established a federal right to marriage equality.
The other members of the Court did not attack Oberfell in their writings, as did Thomas and Alito, and it is unclear whether there is a judicial majority to overturn the decision. However, it is still possible that Trump will expand the Court’s conservative majority during his next term – and if (a decent size ifgiven their ages) if he succeeded in replacing some liberal justices on the Court, he was able to elevate more justices in the tradition of Thomas and Alito.
The second is that Trump’s allies from the religious right could pressure him to take a stand against same-sex marriage. Again, Trump himself has not explicitly targeted same-sex marriage and has declared the decision “settled”. But other prominent Republicans, including those in his orbit like Sen. Ted Cruz (R-TX), have said they felt Oberfell was wrongly decided.
Some prominent conservative policy documents intended to influence the incoming Trump administration have also alluded to same-sex marriages negatively. For example, the Heritage Foundation’s conservative policy project, Project 2025, claims in a chapter ideas for the Ministry of Health and Social Services that “social science reports that assess objective outcomes for children raised in homes other than an intact heterosexual marriage are clear: all other family forms involve higher levels of instability. » (Although Project 2025 cited some studies to support this claim, a lot refute he.)
That said, LGBTQ rights advocates note that marriage equality seems less likely to be a primary target of the president-elect in the short term.
“I think there are reasons for people to watch how things play out, (but also) not to assume that eliminating the freedom to marry is a priority item on the agenda of the new administration,” Pizer said.
What protections does same-sex marriage offer?
Same-sex marriage was introduced by Oberfelland Congress passed additional (albeit limited) protections in 2022.
For same-sex marriage to be overturned under the Trump administration, the Supreme Court – and Congress – would have to act. Again, although some prominent Republicans have made clear their opposition to same-sex marriage, there does not appear to be an overwhelming demand from the Republican Party that the practice be banned. However, if it were to be banned, here is what should happen.
First, the Supreme Court should overturn Oberfell. It is not yet clear that a sufficient number of the judges want to overturn this decisionalthough notably most dissenting voices in this case are still at the Court, while most of the majority vote are gone. (As Vox’s Ian Millhiser reportedIt appears that Justice Neil Gorsuch might side with Alito and Thomas in overturning the decision if given the chance, but it is less certain where the other conservative justices fall.)
If the Court annulled Oberfellthe legality of same-sex marriage would be up to the states, with each state developing its own policy. People in the 32 states where same-sex marriage is still banned could lose the right to marry and be forced to travel elsewhere to do so.
To further roll back same-sex marriage protections, the courts or Congressional Republicans would also need to repeal the 2022 law. Respect for Marriage Act.
This law requires all states to recognize same-sex marriages, although it does not require all states to issue marriage licenses. It also repeals the Defense of Marriage Act, which previously stipulated that all marriages be between a man and a woman, and mandates federal recognition of same-sex marriage.
If Oberfell was struck down, the Respect for Marriage Act would ensure that a person who marries in a state that allows same-sex marriage, such as California, could move to a state that has a ban in place, such as Arkansas, and that his marriage is still legally recognized. . However, it would not require states like Arkansas to marry same-sex couples in the state.
There are also ways the Respect for Marriage Act could be overturned, although this is unlikely. The law could, for example, be repealed by Congress, which would be closely controlled by the Republicans. That seems less likely because of the Republican support it received when it passed in 2022 and because the bill would require 60 votes in the Senate, where the Republican Party’s majority is slim. The law could also be challenged in court by states claiming that Congress has overstepped its authority by telling them how to handle marriages, although it’s also unclear whether that will succeed.
The death of Oberfell and the Respect for Marriage Act represent worst-case scenarios for marriage equality. It is possible that both will progress over the next four years. But for now, neither appears to be the new administration’s main goal.