Could the Supreme Court Overturn Same-Sex Marriage? What Nebraska Couples Should Know
The U.S. Supreme Court is considering whether to hear a case that directly challenges Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage nationwide. The petitioner, former Kentucky county clerk Kim Davis, is asking the Court to overturn that ruling. If the Court agrees, states could once again decide whether to issue new marriage licenses to same-sex couples. In Nebraska—where a constitutional ban on same-sex marriage remains on the books—this could mean a halt to new marriages, even though the federal Respect for Marriage Act (2022) would still require recognition of existing marriages performed in any state. This post explains the current case, possible outcomes, and the proactive legal steps same-sex couples should take now to protect their rights, families, and assets.
Why This Case Matters
The Supreme Court hasn’t faced such a direct challenge to Obergefell v. Hodges since it was decided in 2015. Kim Davis’s case goes further than defending her own actions—it explicitly asks the Court to overturn Obergefell.
If the Court accepts the case and rules in her favor, Nebraska could again enforce its pre-2015 constitutional ban on same-sex marriage. Under the Respect for Marriage Act, states would still have to recognize marriages from other jurisdictions, but the ability to obtain a new marriage license in Nebraska could be eliminated.
What Would Happen in Nebraska if Obergefell Is Overturned
State Control Over Marriage Licensing
Nebraska’s Initiative Measure 416, adopted in 2000, bans same-sex marriage. It remains in the state constitution and could be enforced again if Obergefell is struck down.
Recognition of Existing Marriages
The Respect for Marriage Act requires all states to recognize:
Marriages legally performed in any state, regardless of the couple’s sex.
Existing marriages, even if a state reintroduces a ban on issuing new licenses.
Travel for Marriage
If Nebraska stops issuing licenses, same-sex couples could still marry in another state where it remains legal, and Nebraska would have to honor it. However, this would make the process more expensive, time-consuming, and logistically challenging.
Steps Same-Sex Couples in Nebraska Should Take Now
1. Marry Now if You’re Planning To
If marriage is in your plans, consider doing so before any change in Nebraska’s law could make the process harder.
2. Update or Create Estate Planning Documents
Marriage provides certain legal protections, but you can reinforce and expand them by:
Drafting wills and trusts
Signing durable powers of attorney for financial and healthcare decisions
Creating HIPAA releases for medical information access
3. Secure Parental Rights
For couples raising children, ensure both parents have formal legal recognition—through adoption or court orders—to safeguard custody and decision-making rights regardless of marriage status.
4. Review Benefits and Insurance
Check that both spouses are properly covered under health insurance, retirement accounts, and Social Security benefits.
5. Consider Legal Agreements Beyond Marriage
Even without a marriage license, cohabitation agreements, property agreements, and parenting plans can protect your rights.
Why Acting Now Matters
Even though the Respect for Marriage Act protects recognition of valid marriages, overturning Obergefell would shift marriage licensing authority back to the states. Acting now ensures your marriage, parental rights, and property are protected—no matter how the legal landscape changes.
FAQ: Same-Sex Marriage and Nebraska Law
Q: If the Supreme Court overturns Obergefell, will my marriage be void?
A: No. The Respect for Marriage Act requires all states to honor marriages that were legally performed.
Q: Could Nebraska stop issuing marriage licenses to same-sex couples?
A: Yes. Nebraska’s constitutional ban could be enforced again if Obergefell is overturned.
Q: If I’m not married yet, should I marry before the Court rules?
A: Marrying now can help you avoid potential legal and logistical challenges in the future.
Q: Will my parental rights be at risk if Nebraska bans same-sex marriage?
A: Rights already established through adoption or court order would remain, but formalizing both parents’ rights now is highly recommended.
Q: Can unmarried same-sex couples protect their rights without marriage?
A: Yes—through estate planning, cohabitation agreements, and parenting plans.
Next Steps
If you want to:
Marry before potential legal changes in Nebraska
Protect your parental rights
Update or create estate planning documents
Understand your options under the Respect for Marriage Act