The Respect for Marriage Act and What It Does if Obergefell Falls

On the afternoon of December 13, 2022, thousands of people stood on the South Lawn of the White House to watch President Joe Biden sign a bill. There was live music; Cyndi Lauper sang "True Colors." Among the guests was Jim Obergefell, the Ohio man whose name is on the 2015 Supreme Court decision that made same-sex marriage legal nationwide. It was a celebration, but an unusual one, because the law being signed did not create a new right. It was insurance. It existed because, six months earlier, a justice of the Supreme Court had written that the decision bearing Obergefell's name should be reconsidered, and millions of married couples had started to wonder what would happen if it were.

In short: The Respect for Marriage Act, signed in December 2022 with support from both parties, requires the federal government and every state to recognize a marriage validly performed in any state, regardless of the couple's sex or race. It does not require any state to issue marriage licenses to same-sex couples, so if the Supreme Court ever overruled Obergefell, couples in some states could be unable to marry at home but still have marriages from elsewhere recognized.

The concurrence that started the clock

The road to the South Lawn ran through the Dobbs decision of June 24, 2022, which overruled Roe v. Wade. The majority opinion said that its reasoning about abortion did not threaten other rights. But Justice Clarence Thomas, in a concurrence written for himself alone, argued that the Court should reconsider all of its precedents based on what lawyers call substantive due process. He listed three by name: Griswold v. Connecticut on contraception, Lawrence v. Texas on same-sex intimacy, and Obergefell v. Hodges on same-sex marriage.

No other justice joined that concurrence, and Justice Brett Kavanaugh wrote separately to say that overruling those cases was not on the table. But a single justice's view can become a majority's over time, and it had happened before on the very issue just decided. Couples who had married since 2015, and their lawyers, took the warning seriously.

So did the House. Within weeks of Dobbs, on July 19, 2022, the House passed the Respect for Marriage Act with 267 votes, including 47 Republicans. That bipartisan margin surprised many observers and created momentum in the Senate.

Repealing a law that was already dead, and why that mattered

To understand what the new law did, you have to understand the old one it replaced. In 1996, Congress passed and President Bill Clinton signed the Defense of Marriage Act, known as DOMA. It did two things. Section 3 defined marriage for every federal purpose as between one man and one woman, so even a couple legally married in their state could not file joint federal taxes or receive spousal Social Security benefits. Section 2 said no state was required to recognize a same-sex marriage performed in another state.

The Supreme Court struck down Section 3 in United States v. Windsor in 2013, a case brought by Edith Windsor, who had been charged a large federal estate tax bill after the death of her wife, Thea Spyer, because the federal government did not treat them as married. Obergefell, two years later, made Section 2 irrelevant in practice by requiring every state to license and recognize same-sex marriages.

But DOMA was never repealed. It sat in the federal code, unenforceable while Obergefell stood. And many state constitutions and statutes still contained their own bans on same-sex marriage, also unenforceable but still on the books. If Obergefell fell, those laws could spring back to life. Lawyers call them zombie laws. The Respect for Marriage Act was designed to make sure that if the zombies woke, they would find less to do.

What the law guarantees

The Respect for Marriage Act does three main things.

First, it repeals DOMA entirely and replaces its federal definition. For federal purposes, a marriage is recognized if it was valid in the state where it was entered into. That covers taxes, Social Security, veterans' benefits, immigration and every other federal program tied to marital status. A same-sex couple married in Massachusetts remains married in the eyes of the federal government wherever they live.

Second, it requires states to recognize marriages from other states. No person acting under color of state law may deny full faith and credit to a marriage performed in another state on the basis of the sex, race, ethnicity or national origin of the two people. A couple married in one state cannot be treated as strangers when they move or travel.

Third, it gives that guarantee teeth. The U.S. attorney general can sue to enforce it, and so can a person harmed by a violation.

The inclusion of race is not incidental. The law also protects interracial marriage, which the Supreme Court made legal nationwide in Loving v. Virginia in 1967. Thomas did not name Loving in his concurrence. But the logic of reopening due process precedents made some people nervous anyway, and the law's sponsors chose to write both protections into federal statute.

What the law does not guarantee

Here is the part that is easy to miss. The Respect for Marriage Act does not require any state to issue a marriage license to a same-sex couple.

If the Supreme Court overruled Obergefell, a state with a dormant ban could stop licensing same-sex marriages. Couples who lived there would have to travel to another state to marry. Once they did, their home state would be required by the new law to recognize the marriage, and the federal government would treat them as married. Existing marriages would stay valid.

That is real protection, and for couples already married it is close to complete. But it is not the same as the right Obergefell recognized. Having to cross state lines to marry costs money and time, and it falls hardest on people with less of both. The law also does not address the many other rights that flow from state law, such as how family courts treat parentage, unless they come from the recognition of the marriage itself.

Why stop short? Because that was the version that could pass. Requiring states to license same-sex marriages would have raised constitutional questions about Congress's power over state marriage law, and it would have lost the Republican votes needed to break a filibuster. The sponsors made a choice to secure what they could.

The compromise that got sixty votes

In the Senate, a bipartisan group led by Democrats Tammy Baldwin of Wisconsin and Kyrsten Sinema of Arizona and Republicans Susan Collins of Maine, Rob Portman of Ohio and Thom Tillis of North Carolina negotiated an amendment aimed at religious liberty concerns. It made explicit that nonprofit religious organizations would not be required to provide goods, services or facilities for the solemnization or celebration of a marriage, and that the law would not be read to recognize polygamous marriages. It also stated that nothing in the law would diminish existing religious liberty or conscience protections.

With those changes, the Senate passed the bill on November 29, 2022, by a vote of 61 to 36, with twelve Republicans voting yes. The House passed the amended version on December 8, 2022, by 258 to 169, with 39 Republicans in favor. Biden signed it five days later.

Some LGBTQ advocates worried the religious liberty language conceded too much. Some religious conservatives argued it did not go far enough and opposed the bill outright. Both critiques were sincere. But the outcome is one of the clearer examples in recent years of members of both parties finding a durable agreement on an issue many people assumed was too polarized for compromise. Public opinion helped: by 2022, majorities in national polls supported same-sex marriage, including a meaningful share of Republican voters.

How likely is the scenario the law prepares for?

It would be easy to overstate the danger, and it would be just as easy to dismiss it. Here is where things stand on the public record. No case asking the Court to overrule Obergefell has been accepted for argument. In November 2025, the Court declined to hear an appeal from Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same-sex couples after Obergefell and who had asked the justices to revisit the decision. Two justices from the Obergefell majority, Sonia Sotomayor and Elena Kagan, remain on the Court, and the reliance interests at stake, hundreds of thousands of existing marriages and the families built on them, are the kind the Court has said weigh heavily in favor of keeping a precedent.

On the other hand, the Court overruled Roe after nearly fifty years and after reaffirming it once. Legislators in several states have introduced resolutions urging the Court to reconsider Obergefell. Uncertainty is not paranoia; it is a reasonable reading of a Court that has shown it will revisit settled law.

Here is the argument: the Respect for Marriage Act shows that Congress can protect rights the courts have recognized, and that doing so is not just a fallback but a strength. A right that rests on both a constitutional ruling and a federal statute is harder to take away than one that rests on either alone. The same approach could be applied elsewhere, and in some cases it should be.

From Hawaii to Massachusetts to the Supreme Court

The Respect for Marriage Act makes more sense with the long history behind it, because the fight it settles began decades before Obergefell.

In the early 1970s, a gay couple in Minnesota, Richard Baker and James McConnell, applied for a marriage license and were refused. Their appeal reached the Supreme Court in 1972, which dismissed it in a single sentence, for want of a substantial federal question. For more than forty years, that dismissal stood as a precedent that the Constitution said nothing about same-sex marriage.

The modern story starts in Hawaii. In 1993, the Hawaii Supreme Court ruled in a case called Baehr v. Lewin that the state's refusal to license same-sex marriages was a form of sex discrimination that would have to be justified under the state constitution. The ruling set off alarm in other states and in Congress, where lawmakers feared that couples would marry in Hawaii and demand recognition at home. That fear produced DOMA in 1996. Hawaii voters later amended their constitution to let the legislature limit marriage to opposite-sex couples, and the case never produced a marriage license.

The breakthrough came in Massachusetts. In 2003, the state's highest court ruled in Goodridge v. Department of Public Health that the Massachusetts constitution required the state to allow same-sex couples to marry. The first licenses were issued on May 17, 2004, fifty years to the day after Brown v. Board of Education. In the years that followed, a backlash produced constitutional bans in many states, and then, slowly, the tide reversed through court rulings, legislation and ballot measures.

Windsor came next. Edith Windsor and Thea Spyer had been together for decades and married in Canada in 2007. When Spyer died, the federal government refused to recognize the marriage, and Windsor was billed more than $360,000 in federal estate taxes that a surviving husband would not have owed. Her victory in 2013 ended federal discrimination against married same-sex couples. Obergefell's in 2015 opened marriage everywhere.

Why recognition is not a small thing

It can sound technical to say that the law guarantees recognition. In ordinary life, recognition is most of what marriage means legally.

It decides whether a spouse can make medical decisions for a partner who is unconscious, whether a spouse inherits when there is no will, whether a surviving spouse receives Social Security survivor benefits, whether a couple files taxes jointly and whether a spouse can sponsor a partner for immigration. It affects health insurance through an employer, pension benefits and the presumption that a child born during a marriage belongs to both spouses in many states.

For couples who have been married for years, and who have built households, bought homes and raised children around that legal status, the guarantee that every state and the federal government will continue to treat them as married is not abstract. It is the floor their lives rest on.

What you can do

The couples this law protects are your neighbours, coworkers and family. Here are concrete ways to keep their protections strong.

1. Know the law in your state. Check whether your state's constitution or statutes still contain a dormant same-sex marriage ban. The LGBTQ rights topic page collects current reporting, including efforts to repeal those provisions.
2. Follow the Court. Our court watch page lists Supreme Court opinions this term with the Court's summaries and the emergency docket, so you will know quickly if a marriage case is accepted.
3. See where bipartisan deals happen. The common ground page shows bills both parties passed together, which is useful when you are making the case to a lawmaker that agreement is possible.
4. Support repeal of zombie bans. Ballot measures and legislative votes to remove dormant bans have succeeded in several states. The organizations directory lists LGBTQ and civil rights groups working on them in every state.
5. Thank lawmakers who crossed party lines. It is rare to hear from constituents after a vote goes well. A short call or letter to a legislator who voted for protections despite pressure is more noticed than you might think.

The music on the South Lawn that December was for something unusual: a promise written down in case a court ever changed its mind.