WHAT’S GOING ON?

In 2015, Kim Davis, a county clerk from Kentucky, was jailed for refusing to give marriage licenses to same-sex couples. After losing multiple lawsuits, Davis appealed to the Supreme Court in 2020, who unanimously declined to hear her case.

Last month, Davis filed a petition to the Supreme Court. If the Supreme Court grants her petition, their ruling will determine whether or not:

1) religion can be used as a legal defense for anti-LGBTQ+ discrimination;

2) public officials can be punished for anti-LGBTQ+ discrimination;

3) Obergefell v. Hodges – the 2015 Supreme Court case that legalized same-sex marriage nationwide – should be overturned.

WHAT’S NEXT?

If the Supreme Court grants her request, they will most likely rule on it in June 2026.

Although 8 out of 9 current Supreme Court Justices declined to hear her appeal in 2020, there is a good chance that the Supreme Court will be emboldened to grant her petition.

Three current Justices (Roberts, Thomas, and Alito) ruled against Obergefell v. Hodges in 2015. Of the four Justices appointed since then, it is likely that three more (Gorsuch, Kavanaugh, Barrett) will rule in favor of Davis.

In short: if the Supreme Court grants her petition, they will likely overrule Obergefell v. Hodges.

ABOUT RFMA

If Obergefell v. Hodges is overturned, many states would ban same-sex marriage once again. However, there are still some safeguards in place.

In 2022, Biden signed the Respect for Marriage Act (RFMA) into law.

Per RFMA, all US states and territories, in addition to the federal government, must recognize all legally performed same-sex and interracial marriages.

This means that you will not lose federal benefits for married couples. Additionally, you will not lose state benefits for married couples if your marriage was valid where it was performed.

For example, if you get married in New York – a state that explicitly protects same-sex marriage – then your marriage is legally valid in all states.

SAFE AND UNSAFE STATES

In the event that Obergefell v. Hodges is overturned, there are:

• 23 states that will allow same-sex marriage
• 10 states that may or may not allow same-sex marriage
• 17 states that will not allow same-sex marriage

Unfortunately for Kansans, same-sex marriage is banned by both our state laws and our constitution.

Our only neighboring state that will allow it is Colorado, which overturned both of its bans last year and this year.

WILL MY MARRIAGE STILL COUNT?

It is not certain yet what will happen to the marriages of people who wed in states with same-sex marriage bans. However, it is more likely than not that your marriage will still be recognized if you were married between June 2015 and June 2026.