What is the Future of Marriage Equality?
SUMMARY The short answer is that it is highly unlikely that our marriage rights will be taken away, but not entirely impossible. There are many reasons why this issue is NOT like the disastrous unwinding of Roe v. Wade. The important fact to appreciate is that the Respect for Marriage Act (RFMA) was passed by a bipartisan coalition of Congress in 2022. This legislation codified Federal marriage benefits and requires every state to recognize all marriages performed in any legal jurisdiction. However, there was a door left open to get this law passed. If the Supreme Court overturns Obergefell v. Hodges, any state may restrict NEW marriage licenses to only a man and a woman. Though we may not lose Federal marriage rights, we could be living in a country with a patchwork of state marriage laws again. |
This is a significantly distressing political climate for many of us. At Christopher Street Financial we are asked regularly about the potential fate of marriage equality. With the current dismantling of so many government structures, it seems like a reasonable question to ask. So, we surveyed the opinions of the legal scholars who spent decades advocating for marriage equality.
The clear consensus among these experts is that the Federal freedom to marry is not at risk today. According to Chris Stoll of the National Center for Lesbian Rights (NCLR), “there’s no reason to worry that the freedom to marry is going to go away anytime in the foreseeable future.” Camilla Taylor of Lambda Legal said bluntly “I do not think this is an active emergency.”
While these experts make a logical case that marriage equality is probably safe for now, it doesn’t feel safe. In recent times, there are so many hostile and unpredictable actions coming from the Federal government, some of the states, and the courts. Already this year, lawmakers in nine states have proposed bills calling on the U.S. Supreme Court to reconsider its decision on marriage, arguing that it undermines state sovereignty and the will of voters.
So, why are these experts so confident we won’t go backwards? According to Sarah Warbelow, of the Human Rights Campaign, there is a lot of “political theater” which is not going to get traction in the courts. She explained that a constitutional issue would need to come in front of the Supreme Court. Attempts to overturn Obergefell, thus far, have failed.
So, what is the worst case? What if Obergefell goes the way of Roe? If that occurs, the real problems will occur in the 35 states that still have Defense of Marriage (DOMA) laws on their books that can spring back to life. These states may decide to refuse to issue new marriage licenses to same-sex couples. Like abortion laws today, same-sex couples who want to marry would need to travel to a state where it is legal. We would be back to ‘marriage tourism’.
But, that is probably as bad as it gets. The Respect for Marriage Act would still protect same-sex (and interracial) couples who were already married, even in states where it may become “outlawed”. They would still enjoy Federal marriage benefits and recognition in all 50 states. “Those important protections will remain in place no matter what the Supreme Court might decide in the future,” according to NCLR.
So why are these legal experts so confident? We spoke to civil rights legal champion, James Esseks, of the American Civil Liberties Union (ACLU) who agrees that existing marriages will not be unraveled. We asked him if the RFMA could be torn down. Could we lose Federal recognition of marriage? Esseks explained that Congress would need a super-majority to legally declare that marriage was limited to one man and one woman. This would require a revival of the 1996 Defense of Marriage Act (DOMA). That is the scenario that is extremely unlikely.
How can we proactively protect ourselves?
1. Go ahead and get married.
Don't be afraid to avail yourself of the significant financial, legal, and health benefits that a married couple enjoys. Besides, weddings are fun!
2. If you are a parent, get your legal documents in order.
Don’t depend on a marriage certificate to prove you are a child’s legal parent. Further, a birth certificate is primarily a record of a child's identity and date of birth, not a legal document that definitively establishes parental rights. You may want to get a second-parent adoption or an order of parentage from a court, especially for a non-biological parent. This is just good practice no matter where you live.
3. Make sure your wills, trusts, and beneficiaries are up-to-date and specifically name your spouse.
It is important not to rely on your marriage to ensure that your assets are distributed to your spouse at death. Getting your end-of-life documents in order is a loving thing to do for each other.
4. Your living documents, such as your health care proxy, hospital visitation, and living will should be easily available.
No matter what state you are travelling through, you will want to ensure that your emergency health documents can be accessed by your loved ones. If you are in a coma, you don’t want your spouse to prove that they are legally entitled to visitation, health care information, and the right to make medical decisions in your place.
Christopher Street Financial will continue to be an advocate and educator on freedom to marry in the US. If this is a subject you want to discuss further, please reach out to Jen Hatch or your advisor.
