After Obergefell

After Obergefell

2026-03-01

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Boutchie, Jessica A. *

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Since Obergefell, same-sex couples have spent years litigating when, precisely, their marriages began. In disputes about spousal benefits, divorce, and parentage, state courts ask whether Obergefell requires them to reach back in time and adjudicate particular same-sex marriages as beginning before the couples within them could obtain marriage licenses, and before particular state laws would recognize them. In other words, they ask whether backdating is a constitutionally mandated remedy. They don't always agree about the answer. This Note surveys the backdating cases that have proliferated in the decade after Obergefell. It documents how state courts' different answers to the backdating question reflect normative and jurisprudential confusion about just how much retroactivity Obergefell requires-and how to determine when two people would have married, if at all. It uncovers how states' policies on common-law marriages tend to explain which state courts will backdate, and which ones will not. And it explains how those backdating cases might persist under state-law hooks in a world without Obergefell. In short: Obergefell sought to put an end to the state-by-state patchwork of same-sex marriage recognition. This Note explains one way it did not.

Keywords:

SAME-SEX MARRIAGE

CONFLICT

RIGHTS

LAWS

After Obergefell

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