As a same sex divorce and family‑law attorney in New York City, I regularly counsel clients who are anxious about changes in the law. When the U.S. Supreme Court recognized marriage equality in Obergefell v. Hodges in 2015, it ushered in a new era for lesbian, gay, bisexual and transgender couples. Recently, however, national headlines have focused on a long‑shot petition asking the Court to revisit that decision. This article explores what the case is about, why most legal observers view it as unlikely to succeed, and what it means (and does not mean) for couples in New York.
The background: Obergefell and the Kim Davis petition
Shortly after the Court’s 2015 marriage‑equality ruling, Kim Davis, the elected clerk of Rowan County, Kentucky, refused to issue marriage licenses to same‑sex couples. She stopped issuing licenses altogether and told couples they would have to go to another county. One couple, David Moore and David Ermold, sued her for violating their constitutional right to marry[1]. In 2023 a jury awarded the couple damages of $50 000 each[2]. The U.S. Court of Appeals for the Sixth Circuit rejected Davis’s appeal, explaining that when she denied the license she was acting on behalf of the government and therefore her refusal was not protected by the First Amendment[3].
Davis has now filed a petition asking the Supreme Court to review the Sixth Circuit’s decision and to overturn Obergefell. She argues that her religious beliefs should have permitted her to refuse to issue the license, and she claims the 2015 ruling had “no basis in the Constitution”[4]. On August 8 2025 the Court took the unusual step of ordering the plaintiffs to respond to her petition[5]. While this call for response signals that at least one justice wants to hear from both sides before rejecting the petition, it does not mean the Court has agreed to hear the case.
Why legal experts see this as a long shot
For the Supreme Court to grant review, four justices must agree that the case warrants consideration. To overrule Obergefell, five justices would have to vote to reverse the 2015 precedent. The Court typically grants review when there is a division among the lower federal courts or when an important federal question remains unresolved. Davis’s petition does not identify conflicting appellate decisions on the right to marry[6]; instead, she simply asserts that Obergefell was wrongly decided. Several of the justices who dissented in Obergefell remain on the Court, and Justice Thomas has called for reconsidering that decision in a separate case[7], but there is no clear indication that a majority is prepared to revisit marriage equality. As legal commentator Amy Howe notes on SCOTUSblog, the petition’s path to success is steep and requires both a grant of review and enough votes to overturn the precedent[8].
New York’s marriage‑equality protections
It is important to remember that, regardless of what happens with the Davis petition, same‑sex marriages are protected by both state and federal law. New York enacted its Marriage Equality Act in June 2011, allowing same‑sex couples to marry and enjoy all the rights and responsibilities of marriage. In 2022 Congress passed the Respect for Marriage Act, which requires the federal government and all states to recognize same‑sex and interracial marriages that were validly performed in another state. The National Center for LGBTQ Rights explains that the statute ensures that “federal law would continue to require all states to respect those marriages”[9]. In other words, if you marry in New York, every other state — even one that might not permit new same‑sex marriages — must treat your marriage as valid.
Existing marriages will remain valid
Even if the Supreme Court were to overturn Obergefell (an unlikely scenario), the Respect for Marriage Act and existing state laws mean that your marriage will not be invalidated. The NCLR notes that overturning marriage equality would not “invalidate anyone’s existing marriage” and would not prevent couples from marrying in states that continue to permit same‑sex marriage[10]. Federal protections for Social Security benefits, immigration petitions, tax filings and other marital rights would remain in place for marriages that were valid where they were performed.[11]
Marrying in states that ban marriage equality
If Obergefell were reversed, some states could, in theory, stop issuing marriage licenses to same‑sex couples. Couples living in those states would need to travel to a jurisdiction that permits marriage equality, but once married there, other states would still be required to recognize the marriage under federal law[9]. This is a very different scenario from the pre‑2015 landscape, when marriages performed in one state were not necessarily recognized elsewhere.
Do you need a prenuptial or postnuptial agreement?
In our conversation, we addressed whether same‑sex couples should consider prenuptial (prenup) or postnuptial (postnup) agreements in light of the Davis petition. My advice remains the same as for heterosexual couples: a prenup can be a useful tool for clarifying financial expectations and protecting assets, but it is not more urgent for same‑sex couples than for anyone else. Prenups are about planning for financial and property issues rather than protecting the existence of a marriage. Couples should weigh the pros and cons with a family‑law attorney based on their individual circumstances.
Should you be worried now?
No. Misinformation has caused unnecessary panic about this petition. The Supreme Court has not agreed to revisit marriage equality, and even if it were to do so, the Respect for Marriage Act and New York law provide robust protections. As Chris Stoll of the NCLR writes, there is “no reason to worry that the freedom to marry is going to go away anytime in the foreseeable future”[12]. Couples can continue to marry in every state today, and only the Supreme Court has the power to change that[13].
Frequently asked questions
What is Obergefell v. Hodges?
In 2015 the U.S. Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires all states to license marriages between two people of the same sex and to recognize such marriages performed in other states. This landmark decision guaranteed marriage equality nationwide.
Who is Kim Davis and why is she petitioning the Court?
Kim Davis was the clerk of Rowan County, Kentucky, who refused to issue marriage licenses to same‑sex couples after Obergefell. She stopped issuing licenses altogether, prompting lawsuits by couples like David Moore and David Ermold[1]. After losing in federal court and being ordered to pay damages, she petitioned the Supreme Court in 2025 to overturn Obergefell and relieve her of liability[4].
Has the Supreme Court agreed to hear the case?
No. As of this writing, the Court has only called for a response from the plaintiffs[5]. Four justices must vote to hear the case, and there is no indication that a majority is prepared to revisit Obergefell[14].
What does the Respect for Marriage Act do?
Passed in 2022, the Act requires the federal government and every state to recognize marriages of same‑sex and interracial couples that are valid where they were performed[9]. This means that even if a state does not permit new same‑sex marriages, it must honor marriages lawfully performed elsewhere.
Will my marriage be invalidated if Obergefell is overturned?
No. Existing marriages remain valid. The NCLR explains that even if the Court reversed its marriage‑equality decision, “that wouldn’t invalidate anyone’s existing marriage”[10]. Federal law would still require states to recognize your marriage[11].
Do same‑sex couples need prenups because of this case?
Not specifically. Prenuptial and postnuptial agreements can be useful for many couples to clarify property rights and financial responsibilities, but the potential Obergefell challenge does not increase the need for such agreements. Talk with a family‑law attorney to determine whether a prenup makes sense for your situation.
How soon will we know if the Supreme Court will take the case?
After the plaintiffs file their response (currently due October 8 2025), the justices will decide whether to grant review. If they deny the petition, the case ends. If they grant review, it will likely be scheduled for argument in the 2025–26 term. There is no set deadline for the Court’s decision on whether to take the case.
Could other states stop recognizing same‑sex marriages?
No. The Respect for Marriage Act requires states to recognize same‑sex marriages that were valid where performed[11]. A state may try to stop issuing new licenses, but it cannot legally refuse to recognize an existing marriage.
Does this affect immigration or Social Security benefits?
No. Federal agencies must recognize valid marriages. Even if a state bans new same‑sex marriages, the federal government will continue to honor marriages performed in states where they are legal[11].
Where can I get legal help?
If you have questions about marriage equality, prenuptial agreements or family‑law matters, contact a qualified family‑law attorney. Our firm in Manhattan is available to answer questions and provide personalized guidance.
Conclusion
The current petition to overturn Obergefell v. Hodges is an outlier filed by a local Kentucky clerk seeking to avoid paying damages. It is not a direct attack on marriage equality, and there is no indication that the Supreme Court has the votes to grant review or overturn its landmark ruling. Meanwhile, New York’s Marriage Equality Act and the federal Respect for Marriage Act provide strong safeguards for couples. Stay informed, but do not let misinformation undermine the joy and security that marriage equality brings.
[1] [2] [3] [4] [5] [6] [7] [8] [14]
Will the Supreme Court revisit its ruling on same-sex marriage? – SCOTUSblog
[9] [10] [11] [12] [13]
No state can invalidate your marriage! – National Center for LGBTQ Rights
