Same-sex marriages are legal in the United States, but you would not know that if you only consulted the state codes. Last June, the United States Supreme Court handed down its decision in Obergefell v. Hodges, 576 U.S. ___ (2015). In Obergefell, the Court considered two questions: (1) did the Fourteenth Amendment require states to license a marriage between two people of the same sex; and (2) did the Fourteenth Amendment require states to recognize a same-sex marriage that was lawfully licensed and performed in a different state. On both questions, the Court answered in the affirmative.
So, what happens when a court holds that a state law is unconstitutional? I wanted to see if state legislatures updated their state codes in the face of adverse United States Supreme Court precedent so I looked up the marriage laws from the states that were the subject of this litigation: Michigan, Kentucky, Ohio and Tennessee.
On the website of the Michigan legislature, Revised Statutes of 1846, Chapter 83, Section 551.1
still states that a marriage between individuals of the same sex is an invalid contract:
Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
To add to the confusion, sometimes these same-sex marriage prohibition laws are located outside of the family law or marriage code. In Michigan, the voters approved the Michigan Marriage Initiative in 2004, which amended the Constitution of Michigan of 1963, to prohibit same-sex marriages.
Art. I, Sec. 25. To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.
Kentucky has followed the same approach as Michigan with Kentucky Revised Statute 402.005 providing the following definition of marriage:
As used and recognized in the law of the Commonwealth, “marriage” refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.
A parallel provision may also be found in Section 233A of the Kentucky Constitution.
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
In Ohio, Title XXXI, Chapter 3101, Section 3101.01 of the Ohio Revised Code identifies the persons who may be joined in marriage.
(A) A marriage may only be entered into by one man and one woman.
(C)(1) Any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state.
(2) Any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.
(3) The recognition or extension by the state of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state. Any public act, record, or judicial proceeding of this state, as defined in section 9.82 of the Revised Code, that extends the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes is void ab initio. Nothing in division (C)(3) of this section shall be construed to do either of the following:
(a) Prohibit the extension of specific benefits otherwise enjoyed by all persons, married or unmarried, to nonmarital relationships between persons of the same sex or different sexes, including the extension of benefits conferred by any statute that is not expressly limited to married persons, which includes but is not limited to benefits available under Chapter 4117. of the Revised Code;
(b) Affect the validity of private agreements that are otherwise valid under the laws of this state.
(4) Any public act, record, or judicial proceeding of any other state, country, or other jurisdiction outside this state that extends the specific benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
Finally, we arrive at Tennessee where § 36-3-113 of the Tennessee Code states that marriage between one man and one woman is the only legally recognized marital contract:
(a) Tennessee’s marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end, it is further the public policy of this state that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.
(b) The legal union in matrimony of only one (1) man and one (1) woman shall be the only recognized marriage in this state.
(c) Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee.
(d) If another state or foreign jurisdiction issues a license for persons to marry, which marriages are prohibited in this state, any such marriage shall be void and unenforceable in this state.
The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.
So, the quick answer is that nothing happens. The laws on the books remain; however, the state no longer enforces them. This is true even in California where Article 1, Sec. 7.5. of the California Constitution still contains the provision barring same-sex marriages:
Only marriage between a man and a woman is valid or recognized in California.
If you are expecting the states to amend their constitution or update their codes to reflect the current state of the law, you may be in for a long wait. In 2000, Alabama finally amended their constitution to repeal the miscegenation law found in the state constitution that prohibited interracial marriages. This came 33 years after the U.S. Supreme Court struck down Virginia’s statutory scheme to prevent marriages between persons solely on the basis of racial classifications in Loving v. Virginia, 388 U.S. 1 (1967).
Alabama still has not gotten around to amending their constitution to remove Section 256 which requires that separate schools be provided for white and colored children.