You might think this is a settled issue. Most people do. In fact, if you walk into a coffee shop in Seattle or Atlanta and ask someone to name the states that gay marriage is illegal, they’ll probably look at you like you’re crazy. They’ll tell you Obergefell v. Hodges happened in 2015 and that was that. End of story.
But it’s not that simple. Honestly, the legal landscape in 2026 is a weird, messy patchwork of "zombie laws," dormant constitutional amendments, and a massive federal safety net called the Respect for Marriage Act.
Basically, as of right now, there are zero states where a same-sex couple can be legally denied a marriage license. It’s a right nationwide. However, if you look at the actual books—the literal printed statutes in state capitals—you’ll find that in about 30 states, gay marriage is technically "illegal" or banned by language that was never actually removed.
The Ghost Laws Still Haunting State Constitutions
It’s kinda wild when you think about it. You have these massive, sweeping bans sitting in state constitutions like unexploded landmines. They don't do anything right now because the Supreme Court said they can’t. But they are still there.
Take a look at Alabama or Texas. If you go to the Texas Family Code, Section 6.204 is still right there. It says that marriage in Texas consists "only of the union of one man and one woman" and that the state won't give effect to any right or claim to a marriage between persons of the same sex. It's a "zombie law." It’s dead, but it’s still walking around in the legal text.
Why does this matter? Because laws can change.
In 2022, when the Supreme Court overturned Roe v. Wade in the Dobbs decision, Justice Clarence Thomas wrote a concurring opinion that sent shockwaves through the country. He explicitly suggested that the court should reconsider other "substantive due process" precedents. He specifically mentioned Obergefell.
That changed everything. Suddenly, those dormant bans in states that gay marriage is illegal by statute became a very real concern for millions of families. If the Supreme Court ever decided to "return the issue to the states," those old laws would theoretically spring back to life instantly.
Where the Bans Still Sit
Most of the "illegal" language exists in the South and the Midwest. We’re talking about states like:
- Mississippi: Their constitution still says marriage is between a man and a woman.
- Kentucky: The 2004 amendment is still on the books.
- Tennessee: A similar ban remains.
- Missouri and Arkansas: Both have constitutional language that hasn't been scrubbed.
Some states have tried to clean house. Nevada, for example, became the first state to actually strip a same-sex marriage ban from its state constitution via a ballot measure in 2020. They replaced it with a proactive right to marriage. But that’s the exception, not the rule. Most legislatures aren't in a hurry to touch the issue because it’s politically radioactive.
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The Respect for Marriage Act: The 2022 Game Changer
You've probably heard of the Respect for Marriage Act (RFMA). President Biden signed it in late 2022. It was a direct response to the fear that Obergefell might be next on the chopping block.
Here is the thing: the RFMA does not actually require every state to issue marriage licenses to same-sex couples if Obergefell were overturned. That’s a common misconception.
What it does do is require every state to recognize a marriage that was validly performed in another state.
So, let's play out a hypothetical. If the Supreme Court flips and says states can ban gay marriage again, a state like Georgia could theoretically stop issuing new licenses. But, because of the RFMA, Georgia would be legally forced to recognize a marriage license from New York or California. It creates a "full faith and credit" scenario.
It also ensures that the federal government will always recognize these marriages for things like Social Security benefits, taxes, and immigration. That’s a huge deal. It’s a massive insurance policy.
Why Aren't States Removing These Bans?
It's mostly about the "friction of the process." To change a state constitution, you usually need a supermajority in the legislature or a popular vote. In many of the states that gay marriage is illegal on paper, the political will just isn't there to hold a referendum.
Politicians in red states often feel that if they move to repeal a dormant ban, they’ll get primaried from the right. On the flip side, some activists don't want to bring it to a vote because they're afraid of losing a close race, which would send a signal of weakness.
So, we stay in this weird limbo.
There's also the religious freedom angle. You see this play out in court cases constantly. Even though the marriage itself is legal, the "illegality" or "disapproval" of the practice is often used as a basis for state-level religious freedom restoration acts (RFRAs). These laws don't ban the marriage, but they can make it harder for couples to access certain services if a business owner has a "sincere religious objection."
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The Difference Between "Illegal" and "Unenforceable"
We have to be careful with words here. If you ask a lawyer, "Is gay marriage illegal in Tennessee?" they will say no.
If you ask a historian, "Is there a law in Tennessee that says gay marriage is illegal?" they will say yes.
Both are right.
This is what law professors call "de jure" versus "de facto." De jure (by law), many states still have bans. De facto (in practice), gay marriage is the law of the land because of the Supremacy Clause of the U.S. Constitution.
The U.S. Constitution beats a state constitution every single time.
Real-World Impact for Couples
Does this actually affect your daily life? Mostly, no.
If you are a same-sex couple in a state with a "zombie ban," you can get your license at the courthouse just like anyone else. Your health insurance has to cover your spouse if it covers other spouses. You have the same inheritance rights.
The anxiety is mostly about the future. It’s about the "what if."
If you’re planning a life in a state with a dormant ban, experts often suggest a "belt and suspenders" approach. This means doing the extra legal paperwork—wills, powers of attorney, healthcare proxies—that people used to do before 2015. It’s basically a way to protect your relationship using contract law just in case the marriage law itself ever gets shaky.
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What Happens Next?
The map is shifting, but slowly.
We are seeing more "proactive" legislation in blue and purple states. Michigan, for instance, recently worked to codify protections into their state civil rights acts. They want to make sure that even if the federal courts walk away, the state courts have a firm foundation to stand on.
In 2026, the real battle isn't about the license itself anymore. It's moved to the edges. It’s about adoption rights. It’s about whether a private foster care agency can refuse to work with a gay couple while receiving state funding. It’s about whether "parentage" is automatically granted to a non-biological parent in a same-sex marriage.
These are the areas where the states that gay marriage is illegal on their books tend to be the most aggressive in court. They might not be able to stop the wedding, but they can certainly make the "being married" part a lot more complicated.
Actionable Steps for Navigating the Legal Landscape
If you live in a state where these old bans still exist, or if you're worried about the long-term stability of marriage equality, there are concrete things you can do to protect your family.
- Update Your Documents: Don't rely solely on your marriage certificate. Have a lawyer draft a "Power of Attorney" and "Medical Proxy." These are private contracts that stay valid even if marriage laws shift.
- Second-Parent Adoption: Even if both names are on the birth certificate, some legal experts recommend a formal adoption process. A court order for adoption is much harder to overturn than a marriage-based presumption of parentage.
- Check Your State's "Zombie Laws": Knowledge is power. Look up your state’s constitution. If there is a ban still in the text, support local organizations like Equality Texas or the ACLU who are working on long-term legislative repeal.
- The "Travel" Strategy: If you live in a state that you fear might one day stop issuing licenses, remember the Respect for Marriage Act. Getting married in a state with "ironclad" protections (like New York or Massachusetts) provides an extra layer of federal recognition that travels with you.
The bottom line? Marriage equality is the law of the land today. But the presence of these old laws is a reminder that rights are often more fragile than they look. Staying informed isn't just about politics—it's about protecting your home and your partner.
Don't let the headlines scare you, but don't let the status quo make you complacent either. The law is a living thing, and in 2026, it's still breathing.
Next Steps for Protection:
- Consult with an LGBTQ+ family law specialist in your specific state to review your "zombie law" status.
- Ensure all beneficiary designations on 401ks and life insurance policies are updated and explicit.
- Look into the "Confirmatory Adoption" process if you have children, regardless of whose name is on the birth certificate.