Obergefell did a lot of things, but one thing it didn’t do is to tell anti-gay-marriage states that they had to rewrite their state constitutions or state statutes to make them conform with our brave new world. At last count, 31 states had/have state constitutional text banning gay marriage, or even the efficacy of civil unions. As I’ve written before, there is a lot of internal variation in how states have not only defined and legislated marriage, but also how they have legislated against same-sex marriage. Some of this text, I imagine, will play out in interesting, unpredictable, and odd ways moving forward—though we’ll have to wait and see.
For example, Article I, §25 of the State of Michigan’s constitution reads: “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.”
This text could be read to invalidate any statutory effort to completely replace both opposite-sex and same-sex marriage with civil unions in Michigan—whether that replacement be for right-wing or progressive reasons. This text could also play out, I imagine, in disputes concerning division of marital property, alimony, or child custody.
And just for a comparative point of reference, it was only in 2000—33 years after the decision in Loving v. Virginia—that the State of Alabama overturned its state constitutional ban on anti-miscegenation. With only 60% of the vote.