Same-sex marriage is legal in all 50 states. This right was secured nationwide in 2015 through the landmark U.S. Supreme Court decision Obergefell v. Hodges, which struck down state bans on same-sex marriage and required states to license and recognize such unions.
While the law is currently settled, the path to nationwide marriage equality was neither quick nor simple, and ongoing political and legal discussions mean same-sex couples should remain informed about their rights.
Here’s a rundown on the current state of same-sex marriage law in 2025 and what you should know to fortify your union.
The Path to Marriage Equality
The road to marriage equality began decades before Obergefell.
In 1996, the federal government enacted the Defense of Marriage Act (DOMA), which denied federal recognition of same-sex marriages and allowed states to refuse to recognize same-sex marriages performed in other states.
Progress began to accelerate in the early 2000s. Massachusetts became the first state to legalize same-sex marriage in 2004, and over the next decade, other states followed through court rulings, legislation, or voter initiatives.
In 2013, the Supreme Court struck down the federal section of DOMA in United States v. Windsor, ruling that same-sex couples married in states that recognized their unions were entitled to federal benefits.
This decision set the stage for Obergefell v. Hodges in 2015, where the Court held that same-sex couples have a fundamental constitutional right to marry, effectively legalizing same-sex marriage country-wide.
How Same-Sex Marriage Works State by State
While Obergefell requires all states to recognize and allow same-sex marriages, the legal landscape at the state level remains complicated.
States with Affirmative Protections
Some states, such as New York, California, and Colorado, have passed laws or constitutional amendments explicitly protecting the right to same-sex marriage at the state level.
Even if Obergefell were overturned, these states would continue recognizing such unions.
States with Dormant Bans
Many states still have constitutional or statutory bans on same-sex marriage written into their laws. These bans are unenforceable under Obergefell, but if the Supreme Court were ever to reverse its decision, they could come back into effect automatically.
For example, states like Texas, Georgia, and Michigan have constitutional amendments restricting marriage to opposite-sex couples that remain part of their legal codes.
This patchwork means that while marriage equality is guaranteed nationwide today, the strength of that guarantee varies depending on whether a state has proactive legal protections or only recognizes marriage because of the federal mandate.
Reference these maps for a full rundown on which states explicitly protect same-sex marriages and which have dormant bans that are currently unenforceable.
Risks to the Legalization of Same-Sex Marriage
The legality of same-sex marriage rests primarily on Obergefell v. Hodges.
As with any Supreme Court precedent, there is a theoretical risk that the Court could revisit and overturn its ruling. This risk became more visible after the Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and returned the issue of abortion to the states.
While there is currently no active Supreme Court case challenging same-sex marriage, the existence of dormant state bans means the consequences of an overturned precedent could be immediate and significant in many states.
Congress attempted to address these concerns by passing the Respect for Marriage Act (RFMA) in 2022. This act repealed DOMA and requires states to recognize marriages validly performed in other states. However, RFMA does not require all states to issue same-sex marriage licenses if Obergefell were overturned.
The Value of Prenups for Same-Sex Couples
Regardless of the legal landscape, same-sex couples—like all couples—benefit from the clarity and protection that prenuptial agreements provide.
Here’s How:
- Financial Transparency: Creating a prenup encourages open and honest conversations about money, debt, and financial goals. This transparency helps strengthen trust and communication between partners.
- Customized Property Division: Every couple has unique circumstances. A prenup allows same-sex couples to decide in advance how property, savings, investments, or even business interests should be handled, rather than leaving those decisions to default state laws.
- Debt Protection: If one partner brings significant student loans, credit card debt, or business obligations into the marriage, a prenup can ensure the other partner is not unfairly responsible.
- Safeguarding Inheritances and Family Gifts: Many people want to keep inheritances or family heirlooms separate from marital property. A prenup can make sure those wishes are respected.
- Support for Families with Children: For same-sex couples building families through adoption, surrogacy, or previous relationships, prenups can provide added structure and stability when it comes to financial responsibilities.
Final Thoughts
Same-sex marriage is legal in all 50 states, thanks to Obergefell v. Hodges.
While there’s no current legal threat to these marriage rights, it’s important for same-sex couples to stay informed and consider how choices in their marriage, like living in a state with same-sex laws built into its constitution, may protect their relationship.
Interested in learning more about the considerations to take for your same-sex prenup? Book a consultation call with me today. I pride myself on equipping couples with the necessary information to develop a robust prenup tailored to their relationship.