Could the Supreme Court roll back same-sex marriage during a Trump administration?

In the wake of Donald Trump’s victory in the 2024 presidential election, some couples planning same-sex weddings have begun to panic, worried they could lose the right to marry.

An engaged wedding planner wrote in Vogue how she and her friends plan to move up their weddings; a chaplain in Iowa is helping dozens of couples plan for accelerated nuptials; advocates say they’re seeing an uptick in concern about marriage rights.

“People are very worried, no question about that,” Jennifer Pizer, chief legal officer for LGBTQ rights group Lambda Legal, told Vox.

These worries stem from attacks that Trump and his allies have made on LGBTQ rights, though the president-elect did not directly target same-sex marriage during his campaign. Trump instead made anti-trans policy a focal point of his rhetoric, and changes to LGBTQ rights appear more likely to focus on rolling back protections for trans people rather than the elimination of same-sex marriage.

There are also two safeguards in place — a Supreme Court ruling and federal law — that make any attack that might come on same-sex marriage, whether from the executive branch or elsewhere, tougher to make. Two major factors, however, have LGBTQ advocates concerned.

The first is the conservative makeup of the Supreme Court. Same-sex marriage is protected in part by the 2015 Obergefell v. Hodges Supreme Court decision. Previously, Supreme Court Justices Clarence Thomas and Samuel Alito openly expressed that they’d like to revisit the 2015 Obergefell decision — which established a federal right to marriage equality.

The other members of the Court haven’t attacked Obergefell in their writings, as Thomas and Alito have, and it’s not clear if there’s a court majority to overturn the decision. However, there is always the possibility that Trump could expand the Court’s conservative majority during his next term — and if (a decently sized if, given their ages) he were able to replace some of the Court’s liberal justices, he could elevate more judges in line with Thomas and Alito.

The second is that Trump’s allies from the religious right could lobby him to take a stance against same-sex marriage. Again, Trump himself has not explicitly targeted same-sex marriage, and has said the decision was “settled.” But other prominent Republicans, including those in his orbit like Sen. Ted Cruz (R-TX), have said they felt Obergefell was wrongly decided.

Some prominent conservative policy documents meant to influence the next Trump administration have also alluded to same-sex marriages in negative ways. For instance, the Heritage Foundation’s conservative policy blueprint Project 2025 claims in a chapter with ideas for the Department of Health and Human Services that “social science reports that assess the objective outcomes for children raised in homes aside from a heterosexual, intact marriage are clear: All other family forms involve higher levels of instability.” (Though Project 2025 cited some studies to support this claim, many refute it.)

That said, LGBTQ advocates note that marriage equality seems less likely to be a chief target of the president-elect in the near term.

“I think there’s reason for people to be watching how things unfold, [but also] not assuming that eliminating the freedom to marry is a top agenda item for the incoming administration,” says Pizer.

What protections does same-sex marriage have?

Same-sex marriage was established by Obergefell, and Congress passed additional (though limited) protections for it in 2022.

In order for same-sex marriage to get rolled back during the Trump administration, the Supreme Court — and Congress — would have to act. Again, while some prominent Republicans have made their opposition to same-sex marriage clear, there does not appear to be overwhelming GOP demand that the practice be outlawed. However, if it were to be banned, here’s what would have to happen.

First, the Supreme Court would have to overturn Obergefell. It isn’t yet evident that a sufficient number of justices want to reverse this decision, though notably most of the dissenting voices in that case are still on the Court, while most of the majority voices are gone. (As Vox’s Ian Millhiser has reported, it appears Justice Neil Gorsuch could side with Alito and Thomas on overturning the ruling if given the chance, but it’s less certain where the other conservative justices fall.)

If the Court did overturn Obergefell, the legality of same-sex marriage would fall to the states, with each state making its own policy. People in 32 states where there are still same-sex marriage bans on the books could lose the right to marry, and be forced to travel somewhere else to do so.

To further undo protections for same-sex marriage, the courts or Congressional Republicans would also have to repeal 2022’s Respect for Marriage Act.

That law requires all states to recognize same-sex marriages, though 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 Obergefell was overturned, the Respect for Marriage Act would guarantee that someone who marries in a state that allows same-sex marriage, like California, could move to a state that has a ban in place, like Arkansas, and still have their marriage be legally recognized. It would not require states like Arkansas to marry same-sex couples in the state, however.

There are ways the Respect for Marriage Act could be struck down too, though they’re unlikely. The law could be repealed by Congress, for example, which will be narrowly controlled by Republicans. That seems less probable because of the Republican support it received when it passed in 2022, and because the legislation would require 60 votes in the Senate, where the GOP majority is slim. The law could also be challenged in court by states arguing that Congress overstepped its authority in telling them how to handle marriages, though it’s also not clear if that would be successful.

The death of Obergefell and the Respect for Marriage Act represent the worst-case scenarios for marriage equality. It’s possible that both could advance in the next four years. But at the moment, neither appears to be a primary aim for the incoming administration.