Publication Date: August 13, 2025

Overview

Discussion that the U.S. Supreme Court could revisit its 2015 ruling recognizing a constitutional right to same-sex marriage has resurfaced debate over how marriage is regulated in America and how U.S. marriage and divorce trends fit within global patterns. Whatever the Court does or does not take up, the legal baseline today is clear: states administer marriage licensing, but the Constitution constrains how those licenses are granted and recognized. This piece lays out verifiable facts about the current law, the mechanics of state licensing, U.S. marriage and divorce rates, and how American trends compare with other countries.

Facts

• In Obergefell v. Hodges (2015), the Supreme Court held that the Fourteenth Amendment requires states to license marriages between two people of the same sex, and to recognize such marriages performed out of state. The majority stated that “the right to marry is a fundamental right inherent in the liberty of the person,” and state licensing regimes must comply with the Constitution.
  
• The United States does not issue a federal marriage license. Marriage licenses are issued under state law; Obergefell’s remedial holding requires both licensing and interstate recognition for same-sex marriages as a matter of constitutional law.
  
• Provisional national vital statistics indicate that in 2023 the U.S. marriage rate was 6.1 per 1,000 total population (about 2,041,926 marriages), and the divorce rate (from 45 reporting states and D.C.) was 2.4 per 1,000 population (about 672,502 divorces) CDC/NCHS FastStats. CDC provides state and national trend tables and notes coverage limitations for non-reporting states in some years CDC/NVSS Marriages and Divorces.
  
• Using the internationally comparable “crude divorce rate,” OECD compilations show that in the most recent pre-pandemic comparable series the unweighted OECD average was about 1.8 divorces per 1,000 people, while the U.S. was about 2.3 per 1,000—roughly 25% higher than the OECD average for that period. Methodology and cross-country series are documented in the OECD Family Database (indicator SF3.1) and associated materials OECD SF3.1 (PDF) and OECD overview. Recent U.S. provisional data (2.4 per 1,000 in 2023) remain on the higher end of OECD distributions CDC/NCHS FastStats with cross-national series summarized from official sources OWID “Divorce rate” data page (OECD-sourced series).
  
• Across OECD countries, marriage rates have generally declined for decades while average ages at first marriage have risen; crude divorce rates rose in many countries from the 1970s to 1990s and then stabilized or declined in some. Cross-national indicators and methodology are detailed in the OECD Family Database OECD Family Database SF3.1 (PDF) and overview chapter OECD overview.

Perspectives

• Petitioners’ rights perspective (as recognized in Obergefell): Couples have a fundamental right to marry, and states may not exclude same-sex couples from civil marriage licensing or recognition; denying that right violates due process and equal protection by depriving couples of “equal dignity in the eyes of the law”.
  
• State sovereignty/traditional definition perspective (articulated in Obergefell dissents): Marriage policy has historically been reserved to the states; redefining marriage should be left to state electorates and legislatures rather than imposed by federal courts. The dissenters warned that the Court’s approach displaces democratic decision-making (see Chief Justice Roberts and Justice Alito dissents).
  
• Public health and statistical agencies: CDC/NCHS does not take a legal position; it reports that marriage and divorce rates are administratively sourced from state vital records, with national rates reflecting provisional and final counts when available, and documents multi-decade declines in marriage rates with recent rebounds toward pre-pandemic levels CDC/NCHS FastStats and NVSS Marriages and Divorces.
  
• Comparative policy researchers (OECD Family Database): OECD compiles official national statistics showing that declining marriage rates and varied divorce trends are widespread among member countries, providing context that the U.S. trajectory is part of broader demographic and social changes rather than a uniquely American pattern.
  
• Civil libertarian/voluntary association advocates: Argue that government should not define or control marriages at all; the state’s legitimate interest is societal stability—public safety in interpersonal relationships and ensuring parents care for their children—neither of which civil marriage, as a contract label, guarantees. Under this view, private contracts and existing civil/criminal laws addressing custody, support, property, and safety could cover obligations without state-issued marriage licenses. (Position summarized as a policy stance; not a judicial holding.)

Considerations

• Because states administer marriage licenses, any change in constitutional rules from the Supreme Court would directly affect how states must structure eligibility and recognition, with immediate administrative implications.
  
• Obergefell’s dual holding on both licensing and recognition prevents interstate patchworks for same-sex marriages; a shift on either prong could reintroduce conflicts-of-law problems across state lines.
  
• U.S. divorce rates sit on the higher side of OECD distributions; interpreting that difference requires attention to age at marriage, selection into marriage, and legal frameworks for dissolution documented in OECD series.
  
• Vital statistics coverage varies by state and year; interpreting short-term fluctuations in national marriage and divorce rates requires attention to reporting scope and provisional versus final counts.
  
• Internationally, countries that centralize civil status nationally versus subnationally experience similar macro-trends in marriage and divorce, suggesting that licensing locus (national vs. state/provincial) alone does not determine long-run rates.

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