New uncertainty around the Supreme Court’s privacy jurisprudence presents Democrats a moment to bring marriage back to the fore. In Congress, they could reintroduce the Respect for Marriage Act, which was drafted to repeal the Defense of Marriage Act but effectively abandoned after the Supreme Court struck down part of the law in 2013. If the court were to one day return to states the ability to ban same-sex unions, the legislation would set a clear standard for which relationships the federal government would have to recognize.

These would likely present difficult votes for Republicans in the House and Senate. Indeed, in only four southern states do Public Religion Research Institute surveys find marriage equality failing to win majority support. Everywhere, backing for same-sex marriage is higher than Biden’s vote share; in some battleground states, like Arizona and Wisconsin, the gap is 20 points or more.

Most of those states still have unenforceable language on their books forbidding recognition of same-sex marriages. In 2020, Nevada became the first to rewrite its constitution to remove anti-gay-marriage language (from a 2002 amendment) and affirm in its place a policy to “recognize marriages of and issue marriage licenses to couples, regardless of gender.” When put before voters, the referendum passed with 62 percent of the vote, 12 points better than Biden did in winning the state’s electoral votes. Earlier this year, New Jersey Governor Phil Murphy signed a bill to codify the legitimacy of same-sex marriages in the state, which had been legalized only through a 2013 trial-court order.