In 2015, the U.S. Supreme Court issued Obergefell v. Hodges, guaranteeing same-sex couples the constitutional right to marry nationwide. The decision was heralded as a historic affirmation of equality, stability, and dignity for LGBTQ+ families.
But the legal landscape shifted dramatically in 2022 when Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade. Although Dobbs concerned abortion, its reasoning has sparked serious concern about the future of other rights rooted in substantive due process — including marriage equality.
As we approach 2026, political leaders, advocacy groups, and family law practitioners continue to warn that Obergefell may be in jeopardy. And for good reason: parts of the Court’s language in Dobbs invite reconsideration of prior substantive due process cases. In response, many states are proactively enacting laws to protect marriage equality and non-traditional parentage rights within their borders.
This article explains why marriage equality is under discussion again, what could happen in the coming years, and how states — including California — are preparing.
The Legal Jigsaw: Substantive Due Process and the Threat
The core of the current threat lies in the legal reasoning of the Dobbs decision.
The Substantive Due Process Foundation
- Substantive Due Process (SDP) is the principle that the Fourteenth Amendment’s Due Process Clause protects certain fundamental rights, regardless of whether they are explicitly listed in the Constitution, provided they are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
- Obergefell relied on this doctrine, arguing that the right to marry is a fundamental liberty that extends equally to all citizens.
- Dobbs rejected this broad application of SDP for abortion rights, arguing that for a right to be protected under SDP, it must be rooted in American history and tradition at the time of the Fourteenth Amendment’s adoption. Critics argue this historically narrow view fundamentally undermines many modern rights recognized by the Supreme Court, including the right to contraception, the right to same-sex intimacy (Lawrence v. Texas), and, crucially, the right to same-sex marriage.
Justice Thomas’s Call
In a concurring opinion in Dobbs, Justice Clarence Thomas explicitly called for the Supreme Court to reconsider other precedents rooted in this same substantive due process framework, naming Obergefell directly. This judicial signal, combined with the successful reversal of a 50-year-old precedent in Roe v. Wade, has created widespread alarm and fueled the political push to undo marriage equality.
The Federal Stopgap: The Respect for Marriage Act (RFMA)
Recognizing the threat posed by the Dobbs decision, Congress swiftly passed the Respect for Marriage Act (RFMA) in late 2022. This federal law provides a crucial, though incomplete, layer of protection.
What RFMA Does:
- Repeals DOMA: It officially repeals the 1996 Defense of Marriage Act, which had denied federal recognition to same-sex marriages.
- Requires Interstate Recognition: It mandates that all U.S. states and territories must recognize any marriage legally performed in another state. This means if a couple marries in a state that permits same-sex marriage, that marriage must be recognized nationwide, even if their home state were to later ban same-sex marriage locally.
- Federal Recognition: It ensures that married same-sex couples are entitled to all federal benefits and recognition.
What RFMA Does NOT Do:
Crucially, the RFMA does not stop a state from ceasing to issue same-sex marriage licenses if Obergefell were to be overturned. If the Supreme Court reversed Obergefell, marriage equality would become a state-by-state issue again. Same-sex couples could travel to a state that still issues licenses and return home with a federally and inter-state recognized marriage, but they would not be able to marry locally in a state that had reverted to an old ban. This highlights the reality that RFMA is a defensive mechanism, not a guarantee of the underlying right to marry in all 50 states.
What Would Happen If Obergefell Were Overturned?
If the Supreme Court revisited marriage equality in the future, the impact would be state-driven.
Marriage Would Not Become Illegal Nationwide
Instead, the legal status of same-sex marriage would revert back to state law, as it was before 2015.
States Would Fall Into Three Categories
- States With Statutory or Constitutional Protections for Marriage Equality
- Marriages remain legal regardless of federal changes.
- Example: California, New York, Massachusetts.
- States With Pre-Existing Bans That Would Automatically Re-Activate
- Many states passed constitutional amendments between 2004-2012 banning same-sex marriage.
- If Obergefell falls, these bans immediately spring back to life.
- States With No Clear Statute Either Way
- The legislature or courts would determine next steps.
Existing Same-Sex Marriages Could Face Legal Challenges
One of the most concerning issues is how states might treat:
- Same-sex marriages performed before an overturning
- Parental rights established through marriage
- Property and inheritance rights
- Divorce rights for same-sex couples
Without federal protections, inconsistencies across states could create complicated legal conflicts — especially for families who move across state lines.
What This Means for Same-Sex Couples in 2026
Despite the political and legal threats, marriage equality remains the law of the land, and a direct, immediate overturn of Obergefell is not currently considered imminent by most legal observers. The legal and social cost of reversing such a highly relied-upon precedent is immense.
However, the political environment necessitates preparedness. For same-sex couples, especially those living in states with a history of anti-LGBTQ+ legislation, the most important steps for peace of mind and protection are proactive legal steps:
- Review and Update Estate Planning: Ensure you have up-to-date Wills, Durable Powers of Attorney for Finance, and Advance Healthcare Directives. These documents guarantee that your spouse can make decisions for you and inherit your property, even if your marriage were somehow challenged in a hostile jurisdiction.
- Secure Parentage Judgments: If you have children, do not rely solely on the marriage presumption. Obtain a second-parent adoption or a court-ordered judgment of parentage for the non-biological or non-gestational parent. A court order is the strongest legal defense and must be recognized in all states under the Full Faith and Credit Clause, even if marriage laws change.
- Know Your State’s Status: Be aware of whether your state has repealed its “zombie laws” or enshrined the right to marry at the state constitutional level. This knowledge is key to understanding your risk profile.
The fight for marriage equality has moved from a battle for the right to a battle for its durability. In 2026, the work continues to ensure that the promise of liberty and equality is secured not just by one court decision, but by the bedrock laws of the nation and its individual states.
The good news is that many states, including California, have acted to protect marriage and parentage rights at the state level — providing a safety net for LGBTQ+ families. Still, the legal terrain is shifting, and families must be proactive.
Minella Law Group Can Help
At Minella Law Group, we help families secure their legal rights through parentage judgments, adoption, estate planning, and custody strategies tailored to modern family structures.
📞 Call Minella Law Group today at 619-289-7948 to schedule a confidential consultation with one of our family law specialists. We’ll listen to your concerns, assess the situation, and create a clear strategy tailored to your goals.
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*Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalized guidance on your case, contact a licensed California family law attorney
