If the Supreme Court decided that same-sex marriage was a right on the federal level, what would happen if a specific state decided not to follow their ruling?

What power does the federal government have over states?

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    It already did, at least in the USA (Obergfell v. Hodges, 2015). The consequence was that all the states had to begin performing marriages for same-sex couples that wanted them. Are you asking what would happen if it overturned that ruling?
    – Obie 2.0
    Commented Jul 8, 2022 at 10:01
  • "What power does the federal government have over states?" This part is pretty general (and interesting) and not discussed enough in answers sufficiently IMHO. Commented Jul 8, 2022 at 16:59
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    They sue the state, lose, and then appeal to the Supreme Court? Both answers talk about active denial. What happens when they just ignore you, put your marriage application on the bottom of the stack and leave it there?
    – Mazura
    Commented Jul 9, 2022 at 2:25
  • Why do states follow federal guidelines that they don't want to? (Then they have to pay for their own highways, and nobody wants that.) Article VI... yadda yadda, but what compels them to follow? Aren't there states putting more in then they get back in federal funding? (apparently not) "Eight of the 10 states most dependent on the federal government traditionally vote Republican." smartasset.com/data-studies/… - 8 of 10 states are the ones making the ruckus anyway. I guess it puts the lotion in the basket or it gets the hose again
    – Mazura
    Commented Jul 9, 2022 at 7:47
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    @Mazura North Dakota and Nebraska are definitely not Democratic. At any rate, those numbers are rather misleading. They're not really measuring "aid" as that article claims, but rather all federal expenditures within the given state (which is why Virginia and Maryland get so much... all of the federal agencies and contractors located near D.C.) The federal government isn't going to shut down NASA because of a dispute with Florida or Texas, for example, nor is it going to shut down the Pentagon because of a dispute with Virginia.
    – reirab
    Commented Jul 10, 2022 at 1:14

4 Answers 4


I don't know if this is the worst case confrontation, but I suppose it ranks pretty high; following Brown v. Board of Education there were numerous attempts to resist, some solved with troops and some after legal battles forced the states' own courts to intervene:

In September 1957, Arkansas governor Orval Faubus called out the Arkansas Army National Guard to block the entry of nine black students, later known as the "Little Rock Nine", after the desegregation of Little Rock Central High School. President Dwight D. Eisenhower responded by asserting federal control over the Arkansas National Guard and deploying troops from the U.S. Army's 101st Airborne Division stationed at Fort Campbell to ensure the black students could safely register for and attend classes. [...]

In June 1963, Alabama governor George Wallace personally blocked the door to the University of Alabama's Foster Auditorium to prevent the enrollment of two black students in what became known as the "Stand in the Schoolhouse Door" incident. Wallace sought to uphold his "segregation now, segregation tomorrow, segregation forever" promise he had given in his 1963 inaugural address. Wallace moved aside only when confronted by General Henry V. Graham of the Alabama National Guard, whom President John F. Kennedy had ordered to intervene. [...]

Virginia had one of the companion cases in Brown, involving the Prince Edward County schools. Significant opposition to the Brown verdict included U.S. Senator Harry F. Byrd, who led the Byrd Organization and promised a strategy of Massive Resistance. [...] in 1956, a special session of the Virginia legislature adopted a legislative package which allowed the governor to simply close all schools under desegregation orders from federal courts. In early 1958, newly elected Governor J. Lindsay Almond closed public schools in Charlottesville, Norfolk, and Warren County rather than comply with desegregation orders, leaving 10,000 children without schools despite efforts of various parent groups. However, he reconsidered when on the Lee-Jackson state holiday, the Virginia Supreme Court ruled the closures violated the state constitution, and a panel of federal judges ruled they violated the U.S. Constitution.

And yeah, one holdout county (Prince Edward) kept all their public schools closed until 1964, basically 10 years after Brown. (Private) "segregation academies" were ruled unconstitutional in 1976, but in the meantime (1954-1976) they provided a legal way to circumvent Brown.

Basically, if one were to generalize from the above, given a determined federal executive, it seems the only way to ultimately avoid federal troops enforcing a ruling is to make it non-applicable by making the locus of the dispute vanish/nil. (Both Eisenhower and Kennedy invoked the Insurrection Act of 1807 for their use of troops in the events described above.) The resistance was far less massive following Obergefell, but it involved a number of counties following the latter strategy, i.e. not issuing any marriage licenses, essentially being "closed for business" in that regard.

The current wording of the Insurrection Act provision (which has been amended a few times since initial adoption), according to Wikipedia:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

It provides a statutory exception to the otherwise broad prohibition against using the US armed forces "as a posse comitatus, or otherwise, for the purpose of executing the laws".


The President can take control of a state's national guard and enforce martial law in extreme cases. This happened a lot with desegregation of schools.

A less drastic option is finding the governor in contempt of court, but this is largely a symbolic gesture for a head of state. Fines could be applied, though making them apply to the governor and not the state would likely be difficult. Trying to actually arrest a governor supported by their state police would probably be ugly.

The President could try to use existing laws to make not following the decision extremely inconvenient. Congress passing additional laws could make this more effective, but carries a lot of the challenges as contempt of court.

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    @AndrewMorton you can withhold funding, but you need a reason to do so specified by law. The drinking age is 21 because of highway funding, but just issuing an executive order to block it for a bad governor likely wont survive appeal.
    – Ryathal
    Commented Jul 8, 2022 at 17:26
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    Trump routinely threatened to withold all federal funding from cities and states that didn't do what he wanted, but rarely if ever found the authorization and legal nexus to do what he wanted. One particular case was when he unsuccessfully demanded that school districts return students to campus for the '20-'21 school year (washingtonpost.com/education/2020/07/13/…). And of course Trump was eventually impeached for trying to withhold Congressionally-approved aid for Ukraine. Commented Jul 8, 2022 at 20:34
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    @PCLuddite Wikipedia says that 22 states have active defense forces.
    – Barmar
    Commented Jul 9, 2022 at 15:17
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    "Trying to actually arrest a governor supported by their state police": state police are sworn to uphold the US constitution. This includes supporting the execution of federal court orders. The chance of a court ordering a governor's arrest, though, is virtually nil. Fines are more likely, and even if they were imposed on the governor personally, the governor would be named in "official capacity," and the state would surely pay them.
    – phoog
    Commented Jul 9, 2022 at 15:24
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    @PCLuddite Some states have state defense forces, but they're generally small, poorly-equipped, and have limited training compared to federal and National Guard forces. Most state guards aren't trained or equipped with personal weapons, let alone all the equipment contained in a "proper" military. Combat training is virtually nonexistent. If anything, the fact that they're formally military would make them less effective at interfering with federal officers: it would encourage a far stronger federal response.
    – cpast
    Commented Jul 10, 2022 at 0:32

Whether this is about Politics or Law, doesn't the Answer remain the same: something between nothing and a new civil war, depending on whether enough people with enough power care enough?

Well inside those extremes are the possibilities that indeed the National Guard - or the regular Military - could be sent in, that new laws might be enacted or both.

Again, it depends on which people have power, or inclination or both.

Broadly the law and the constitution are what they are, but they can be enforced only to the extent people have both the will and the ability to show them as they "should" be seen…

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    Doesn't the Posse Comitatus act prevent the US government from using the US Military to enforce domestic policies?
    – Nzall
    Commented Jul 11, 2022 at 11:02
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    @Nzall No. It prevents the government from doing that without statutory or constitutional authority. The Insurrection Act authorizes the use of the military to enforce the laws when regular means fail.
    – cpast
    Commented Jul 11, 2022 at 20:37
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    @Joshua Your dad is wrong. As always, CRS explains it well. Various laws, such as the Insurrection Act, explicitly give authority to use the military to enforce the laws (and they do say “enforce the laws”).
    – cpast
    Commented Jul 11, 2022 at 21:44
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    If Trump had tried to use the military on Jan 6, I would have hoped they would have refused the order. If otherwise, it is hard to guess. Even if Trump were right, using the military like that would not be lawful, and neither would using the federal marshal either.
    – Joshua
    Commented Jul 11, 2022 at 21:59
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    Every single analysis I have read assumes the US military officers do not follow orders blindly. Most likely, should any such stunt be attempted, the military would be divided and stand down to avoid fighting itself.
    – Joshua
    Commented Jul 11, 2022 at 23:10

We don't have to guess. The remedy applied was the usual one, of having a court hold the individual in charge of obeying the U.S. Supreme Court ruling, usually the lowest official with the authority to act, in contempt of court for not doing so until compliance is achieved.

The U.S. Supreme Court on Monday rejected an appeal from Kim Davis, the former Kentucky county clerk who gained national attention five years ago when she cited her religious beliefs in refusing to issue marriage licenses to same-sex couples.

Although the court was apparently unanimous in refusing to hear her appeal, two of the conservative justices said the 2015 ruling making same-sex marriage the law of the land amounted to a "cavalier treatment of religion." Davis "may have been one of the first victims" of the decision, "but she will not be the last," wrote Clarence Thomas for himself and Samuel Alito.

After the marriage ruling, gay couples sued Davis for refusing to issue them marriage licenses, and she was briefly jailed for contempt when she continued to refuse after a court ordered her to grant them. Kentucky later changed state law so that marriage licenses were no longer issued in the name of the county clerk.


  • 1
    Interesting to read ""victims" of the decision" applied to a county clerk whose 'victimhood' consisted of having to issue a marriage license against her religious beliefs (rather brief, minimal involvement, what exactly is her standing in these cases - what makes whether they may marry HER decision, or allows her to enforce her religious beliefs on others with the power of the state?), versus the same-sex couples who were denied marriage (years in duration, profound in effect). I do not think "victims" means what Thomas and Alito seem to think it means. Commented Jul 12, 2022 at 20:47

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