This is episode 141 of the Baehr and Curadh podcast. We are going to go ask what happens if gay marriage is overturned?
- What is gay marriage? There is no such thing as gay marriage.
- We are going to use the term gay marriage in this episode anyway.
- The Trump Administration and Project 2025 want to overturn Obergefell v. Hodges, the Supreme Court decision that legalized gay marriage in the USA.
- The right for gay couples to marry is based on two key Supreme Court cases and a federal law.
- United States v. Windsor -- Edith Windsor challenged the federal government’s definition of marriage as only between one man and one woman under the Defense of Marriage Act (DOMA).
- The Supreme Court ruled in Windsor’s favor, invalidating DOMA and requiring the federal government to recognize any marriage legally performed.
- Obergefell v. Hodges -- the Supreme Court ruled, "[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clause of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty."
- Respect for Marriage Act -- In response to threats against marriage equality, Congress passed the Respect for Marriage Act, codifying both Windsor and Obergefell into federal law.
- While Congress could repeal the Respect for Marriage Act, that alone would not invalidate gay marriage rights currently protected under the Constitution.
- To remove the right to gay marriage, Obergefell would have to be challenged and overturned. This would allow some states to outlaw gay marriage.
- To remove federal recognition of gay marriages, Windsor would have to be challenged and overturned as well. This seems unlikely.
- 35 states currently have constitutional amendments or statutes banning gay marriage.
- The remaining 15 states either have laws protecting gay marriage or lack explicit restrictions.
- This patchwork of state laws would be similar to how abortion rights are now.
- Invalidating existing gay marriages would be complex.
- Marriage licenses do not always require gender disclosure, making it difficult to identify same-sex couples retroactively.
- In some states, marriage licenses are issued at the county level, meaning different formats and storage systems exist.
- It would be a significant burden for state and federal governments to locate and revoke legally recognized marriages.
- If you are married, there are some things you should still do.
- Create or update your will to explicitly name your spouse as a beneficiary.
- Establish a trust to safeguard assets for your partner.
- Ensure powers of attorney are in place for healthcare and financial decisions.
- Update your beneficiaries on bank accounts, retirement plans, and life insurance policies to explicitly name your spouse.
