Panicked same-sex couples rushed to the altar at the end of 2024 to get married before President Donald Trump and Republicans could possibly overturn same-sex marriage rights nationwide. Trump has spoken out repeatedly against same-sex marriage rights and never said he changed his mind to support them, and his actions in his first two weeks in office have many LGBTQ+ nervous.
But Jenny Pizer, chief legal officer of Lambda Legal, acknowledges that we’re in “uncharted legal territory because we’re dealing with an administration that appears to revel with glee in testing [legal boundaries] and creating [anxiety] and fear as a result.”
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There are “very treacherous times we’re going into, and having the protections of the law.”
“It’s good to anticipate things that could happen in order that we do our best job preparing ourselves,” Pizer said, adding, “The bottom line for people is that, if there are things that you can do to secure your relationships, your family status and to take other protective measures, please do those things. Don’t be lulled into complacency by our informed and reasonably expert speculation about what may happen.”
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People shouldn’t get married if they don’t want to, she said, but they may consider getting a registered domestic partnership, examine any other local or state options for securing legal relationship rights, or talk with a lawyer to understand other options or prepare legal documents to help secure your familial rights.
Because marriage and domestic partnerships create a public record of the relationship, Pizer advises that undocumented immigrants resolve any immigration- or visa-related legal matters before marrying.
To better understand potential threats to marriage rights, LGBTQ Nation spoke with Pizer and Chris Geidner, the gay publisher and author of Law Dork, about four different ways that Republicans could try to overturn same-sex marriage rights and their implications for the legal and political process.
What if Trump issues an executive order against same-sex marriage?
Despite Trump’s recent flurry of (possibly illegal) executive orders seeking to overturn the 14th Amendment and federal anti-discrimination laws, Pizer would expect Lambda Legal and other LGBTQ+ advocacy groups to immediately file a legal challenge against any executive order banning same-sex marriage.
Usually, a president will issue an executive order directing a Cabinet secretary to investigate an area — often something involving the federal workforce or federal money — and then develop rules according to a particular principle or set of principles. The order will then direct secretaries or agency heads to issue memos, guidances, advisories, or enforceable rules putting the order’s stated principles into action.
But executive orders don’t typically go into effect overnight, thanks to the 1946 Administrative Procedures Act and other legal processes that exist at the federal level to restrict the executive branch’s authority.
Pizer acknowledges that the Trump administration regularly demonstrates itself as being unaccountable and ungovernable by defying rules, rejecting norms, and issuing orders filled with disinformation and cruelty that cause immediate harm and fear. However, she also notes that Lambda Legal successfully challenged rules from Trump’s first presidential term in court, getting them ruled as invalid because he hadn’t followed established legal processes.
Geidner said that it’s much more likely that an executive order or agency rule would try to chip away at marriage rights for same-sex couples. For example, an anti-gay zealot in an authoritative decision-making position could try to get rid of parental leave for federal employees in same-sex marriages. If that occurred, a challenge could proceed through the federal employee complaint process. If the rule affected federal contractors, it would go through the Department of Labor, which enforces the federal contractor nondiscrimination orders. If a Trump official tried to issue an anti-gay regulation for all private businesses, then the issue would be taken to court.
A court decision could cause such an executive order to never go into effect, or it could simply delay it from going into effect for months or years while courts hear cases. Pizer points out that the Trump administration uses “truly obnoxious litigation tactics” to try to delay judgments and get its way in the meantime. So she advises citizens to “buckle up” as the issues play out in courts.
Nevertheless, she acknowledges the immense power and social influence that executive orders can have.
“Presidential executive orders have been very important in encouraging racial integration, fair treatment of women, and other kinds of fairness in employment when the employer is receiving federal contracts or grants,” Pizer says. “That has been a very important driver of, in our view, important and tremendously valuable social change.”
What if a judge or government agency stops recognizing same-sex marriages?
In the recent past, a few lower-level judges have refused to officiate same-sex marriages — one even said she was legally exempt from doing so because of her sincerely held Christian religious beliefs.
Generally speaking, instances like this haven’t occurred very often because the job duties of government employees dictate that they follow the law. The law — according to the U.S. Supreme Court — recognizes same-sex couples as deserving equal legal rights, thanks to the court’s 2015 decision in the case of Obergefell v. Hodges. Those rights include the right to be married, to get a marriage license, to be recognized as married under current law, and to be treated equally by government employees.
In most cases, if a government agent refuses to provide goods or services to an individual or group based on religious beliefs, another government worker can step in and provide them. This is exactly what happened in the case of Kim Davis, a Kentucky clerk who refused to issue a marriage license to a same-sex couple.
While she sat in jail for her refusal, a deputy clerk simply issued the license to the couple. This roundabout method is an inherently unfair “separate but equal” workaround, making same-sex couples endure discrimination and a longer waiting time to essentially receive the same services as heterosexuals do.
Geidner said that if every member of a municipal or county clerk’s office decided to take a stand and unanimously refuse to issue a same-sex marriage license, and if the same-sex couple either couldn’t locally obtain a license elsewhere locally or decided to sue, then the matter might be resolved by a district court or state judge who could possibly grant the license.
But if the district or state court judge refused, and a religious right legal group decided to represent the religious objectors in a legal appeal to a higher court, then the case could very well end up at the U.S. Supreme Court.
What if the Supreme Court overturns same-sex marriage rights?
Right now, the religious right and anti-LGBTQ+ legal groups, like the Liberty Counsel and Alliance Defending Freedom, are seeking to change the law to legitimize discrimination against same-sex couples and LGBTQ+ people on religious grounds.
They’ve laid the groundwork to do this in the arena of reproductive healthcare, Pizer says. In 2014, the Supreme Court ruled in the case of Burwell v. Hobby Lobby that corporations can deny birth control coverage to their employees based on religious beliefs, even though such coverage is required under the 2010 Affordable Care Act, also known as Obamacare.
This exemption was extended to religious non-profit and for-profit groups in the court’s 2020 decision in the case of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.
“For a long time,” Pizer said, “this, quite substantial area of law has been summed up with the kind of compelling visual that ‘Your right to religious freedom ends at the tip of my nose'” — in other words, one person’s religious freedom shouldn’t affect another person’s body.
But these days, Pizer says, “the arguments are rife and proliferating that the same kind of special exemptions and distortion of the law should be applied to permit discrimination against LGBTQ+ people and same-sex couples.”
Pizer acknowledges that the current Supreme Court, which has a six-to-three conservative tilt, is much more reactionary and protective of religious freedom than it has been in a generation. But in order to reach the Supreme Court, Geidner says a case would first have to work its way through the lower court system and then get four U.S. Supreme Court justices to agree – or grant a writ of certiorari – to officially take up the case.
Geidner presumes that Justices Clarence Thomas and Samuel Alito would be on board — since both have supported revisiting the legal reasoning that justified Obergefell v. Hodges — leaving the two remaining granters up to Chief Justice John Roberts and the three Trump appointees: Justices Neil Gorsuch, Brent Kavanaugh, and Amy Coney Barrett.
Roberts wrote the dissent in Obergefell, but he also agreed that anti-gay discrimination is a form of sex-based discrimination forbidden by Title VII of the Civil Rights Act of 1964 in the court’s 2020 decision in Bostock v. Clayton County. So it’s unclear if he would grant a cert to possibly overturn same-sex marriage rights. As for Trump’s Supreme Court appointees, Geidner says it seems 50-50 on whether they would also grant certification.
Even if a religious right case arose to the Supreme Court — or someone contested Obergefell on free speech grounds, similar to the Christian web designer who convinced the court that making a same-sex marriage website violated her freedom of expression — Geidner doesn’t think either would provide sufficient legal reasoning to overturn the same-sex marriage entirely.
Instead, he says, a successful religious freedom or free speech challenge to Obergefell would do other “bad things,” like hollow out civil protections or public accommodations for same-sex couples, essentially inconveniencing or endangering LGBTQ+ couples but not outright denying them the right to a marriage license.
If however, by some unforeseen circumstance, the high court were to take up a case that granted Thomas’ and Alito’s wish and got the court to overturn its substantive due process precedents set forth in Obergefell, Griswold, and Lawrence — cases that legalized access to contraceptives and consensual adult sodomy — then the right to same-sex marriage would fall to the 2022 Respect for Marriage Act.
What if Congress repeals the Respect for Marriage Act?
In 2022, then-President Joe Biden signed the Respect for Marriage Act (RMA), a law that repealed the 1996 Defense of Marriage Act (DOMA) and required the federal and state governments to recognize same-sex marriages that occur in states where they are legal.
Right now, same-sex marriage is legal in all 50 states thanks to the U.S. Supreme Court’s 2015 Obergefell decision. However, if the Supreme Court were to overturn same-sex marriage rights, same-sex marriage laws would go back to the pre-2015 condition where same-sex marriages were alternately legal or banned in different states.
Currently, 25 states have both laws and constitutional amendments banning same-sex marriages, five have just statutes banning them, and five others have just constitutional amendments banning them.
A battle between these states could emerge, Pizer said, over the Full Faith and Credit Clause. Located in Article IV, Section 1 of the Constitution, the clause requires states to respect the public records, judicial proceedings, and acts of other states. Republican attorneys general and legislatures in states with same-sex marriage bans could argue that they should be exempt from having to recognize same-sex marriages from states where such marriages are legal.
The inconsistency of marriage laws between states, Pizer added, would be a problem not only for same-sex couples who need to have secure legal status, but also for government and private entities and all sorts of people who need to know what people’s legal rights are.
A further complication could arise if a Republican-led Congress repealed the RMA altogether.
Generally speaking, it takes a majority vote in the U.S. House vote and 60 votes in the U.S. Senate to repeal a law (thanks to the Senate filibuster rules). With 53 Republican senators currently in the upper legislative chamber, they would need to convince seven Democrats before being able to successfully repeal the RMA.
Senate Majority Leader John Thune (R-SD) has expressed support for maintaining the current filibuster rules. However, in the past, the Senate has allowed rule change for particular types of business — like the confirmation of federal judges or certain budgetary items, so Thune’s support is not an ironclad guarantee that the filibuster will remain in place to protect the RMA and other things, Pizer noted.
If the RMA was repealed, not all of the aforementioned laws and constitutional amendments banning same-sex marriage would immediately go into effect, Geidner says.
For example, if a state legalized same-sex marriage through a state court decision —like Iowa’s Supreme Court did in 2009 — then same-sex marriages would remain legalized there. If a state legalized same-sex marriage through its legislature, Geidner says, then such marriages would remain legal, even if the RMA and Obergefell were both overturned.
But if same-sex marriage was legalized in a state because of a lower federal court decision, then Geidner says what happens next would depend on whether the lower court’s decision relied upon the same legal reasoning used to overturn Obergefell. In short, old federal court cases would be reopened, and it could take the lower courts several months to figure out which rulings might either be overturned, kept in place or heard in trial once more to reach a final conclusion.
All this being said, Geidner says he doesn’t expect Trump and Republicans to repeal the RMA, in part, because the Treasury Department Secretary Scott Bessent is a married gay man who has children. Pizer emphasized that she doesn’t think a repeal of RMA is likely either.
“I want that to be the main thing that comes through,” she says. “People are anxious about a lot of things that are real and some things that are so much less real or likely. And so I want people’s concerns to be appropriately calibrated here.”
Nevertheless, Geidner said that state and local governments can still take significant action to protect same-sex couples by repealing their same-sex marriage bans and passing additional shield laws, anti-discrimination protections and other legislation and oredinances to help protect LGBTQ+ people’s benefits and rights.
Now might not be the time to worry about same-sex marriage rights
“Same-sex couples have been the most aggressively targeted folks in the past,” Pizer said, “[but] I think that’s less likely to happen this time.” Rather, she said that Republicans seem more determined to target trans, nonbinary, and intersex people for persecution and abuse; and cis people should assist by figuring out how to be helpful and supportive allies.
“It’s on our shoulders to do the range of things that we can to support the people who are likely to be at the most harmful end of the attacks, and to know that we will get through this,” she continued, noting that some Republican attorneys general have made “overreaching efforts” to control people’s travel or obtain their private documents after they go out of state to receive medical care.
“There will be a period of time, I believe, of intensive litigation that addresses the relationship between states and the relationships between states and the federal government … and we won’t know the answer answers to some of those questions until those issues are litigated,” she added.
“Lambda Legal and our other partners in the movement will be doing the best we can to protect everybody, because those attacks are wrong headed, and ultimately, I’m confident that we will have success, but it does take a while.”
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