In the wake of Donald Trump’s victory in the 2024 presidential election, some couples planning same-sex marriages are beginning to panic, fearing they could lose their right to marry.
An engaged wedding planner Bhoge wrote how she and her friends plan to move up their wedding; A clergyman in Iowa helping dozens of couples plan weddings quickly; Advocates say they are watching An uptick in concern about marriage rights.
“People are very concerned, there’s no question about that,” Jennifer Pizer, chief legal officer of the LGBTQ rights group Lambda Legal, told Vox.
Those concerns stem from attacks on LGBTQ rights by Trump and his allies, although the president-elect did not directly target same-sex marriage during his campaign. Trump has instead made anti-trans policies the centerpiece of his rhetoric, and changes to LGBTQ rights seem more likely to focus on rolling back protections for trans people than eliminating same-sex marriage.
There are also two safeguards — a Supreme Court ruling and federal law — that could make any attack on same-sex marriage, whether from the executive branch or elsewhere, more difficult. Two main factors, however, concern LGBTQ advocates.
The first is the conservative makeup of the Supreme Court. Same-sex marriage is partially protected by the 2015 Oberfell v. Hodges Supreme Court verdict. Before the Supreme Court Justice Clarence Thomas And Samuel Alito openly expressed that they would like to revisit in 2015 Oberfell decision – which established a federal right to marriage equality.
Other members of the court did not attack Oberfell In their writings, as have Thomas and Alito, and it is unclear whether there is a majority of the Court to overturn the decision. However, there’s always the possibility that Trump could expand the court’s conservative majority in his next term — and if (by a modest size ifGiven their age) he was able to replace some of the court’s more liberal justices, he could promote more justices in line with Thomas and Alito.
The second is that Trump’s allies from the religious right could lobby him to take a stand against same-sex marriage. Again, Trump himself has not and has not explicitly targeted same-sex marriage The decision says “resolved”. But other prominent Republicans, including those in his orbit like Sen. Ted Cruz (R-TX), said they felt Oberfell The decision was wrongly made.
Same-sex marriage has also been alluded to in a negative way in some prominent conservative policy documents intended to influence the subsequent Trump administration. For example, the Heritage Foundation’s Conservative Policy Blueprint makes the claim in a chapter with ideas for Project 2025. Department of Health and Human Services That “social science reports that assess objective outcomes for children raised in homes excluding heterosexual, intact marriages are clear: all other family forms are associated with higher levels of instability.” (Although Project 2025 cites some research to support this claim, a lot rebuttal it is.)
That said, LGBTQ advocates note that marriage equality does Unlikely to be a prime target of the President-elect in the near term.
“I think there’s reason to look at how people express things, [but also] Eliminating marriage liberties is a top agenda item for the incoming administration, Pizer said.
What protections are there for same-sex marriage?
Same-sex marriage is established OberfellAnd Congress passed additional (though limited) protections for it in 2022.
The Supreme Court — and Congress — must act to restore same-sex marriage during the Trump administration. Again, while some prominent Republicans have made clear their opposition to same-sex marriage, there doesn’t seem to be an overwhelming GOP claim that the practice is illegal. However, if it is banned, here is what will happen.
First, the Supreme Court must be overruled Oberfell. It’s not yet clear whether a sufficient number of justices want to reverse the decision, though a significant majority Dissent While most of those cases are still in court The majority voice Gone (As Vox’s Ian Milheiser reports, it appears that Justice Neil Gorsuch may side with Alito and Thomas in overturning the ruling if given the chance, but it’s less certain where the other conservative justices will fall.)
If the court reverses OberfellThe legality of same-sex marriage will fall to the states, with each state creating its own policies People in the 32 states with same-sex marriage bans still on the books could lose their 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 have to strike down the Marriage Act of 2022.
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 stated that all marriages are between a man and a woman, and mandates federal recognition of same-sex marriage.
if Oberfell Repealed, the Respect for Marriage Act would guarantee that someone married in a state that allows same-sex marriage, such as California, can move to a state that bans it, such as Arkansas, and still have their marriage legally recognized. . But states like Arkansas will not require same-sex couples to marry in the state.
There are also ways to break down respect for marriage laws, though they are unlikely. The law could be overturned by Congress, for example, which would be narrowly controlled by Republicans. That seems less likely because it has Republican support when it passes in 2022, and because the legislation would need 60 votes in the Senate, where the GOP majority is slim. The law could be challenged in court by states arguing that Congress overstepped their authority to dictate how marriage should be governed, though it’s unclear whether that would succeed.
death of Oberfell And the Respect for Marriage Act represents the worst-case scenario for marriage equality. It is possible that both may advance in the next four years. But at this point, that doesn’t appear to be a primary goal for the incoming administration.
