Big news dropped this week, and it's one of those stories that makes my phone start buzzing with texts from clients, friends, and family asking: "Could the Supreme Court actually take away marriage equality?"
Kim Davis, the Kentucky clerk who famously refused to issue marriage licenses to same-sex couples, has asked the Court to overturn Obergefell v. Hodges, the 2015 decision legalizing marriage equality nationwide. For Davis, the appeal is about religious beliefs, but for LGBTQ+ families, it's about the security of marriages and rights.
Can the Supreme Court Overturn
Obergefell
For Davis, the case is based on her personal beliefs and most
experts think it's a long shot to undo marriage equality
entirely. Still, this Court has surprised us before. Justice Thomas
has already suggested revisiting Obergefell, and the fact
that the question is back before the Court is a reminder that the
fight isn't over.
What Would Happen if Obergefell Were
Overturned
If Obergefell were overturned, some states could stop
issuing marriage licenses to same-sex couples almost overnight. Old
bans and "trigger laws" are still sitting on the books in
many states. However, due to the 2022 Respect for Marriage Act,
current same-sex marriages would almost certainly still be
recognized nationwide. Under this law, if a same-sex couple is
legally married in one state, every other state and the federal
government must honor that marriage, even if the couple later moves
to a state that bans it.
Why Does This Matter if You're Already
Married
Some may assume, "Well, we're already married, so
we're fine." Not necessarily. Without
Obergefell, certain rights could become more difficult to
enforce at the state level, such as hospital visitation,
inheritance without a will, or the ability to make medical
decisions for your spouse. For families with children, especially
when only one parent is biologically related, the stakes are even
higher.
Steps to Take Now
- Make your family "court-proof." Ensure you have legal documents in place, including wills, healthcare proxies, powers of attorney, and guardianship documents for kids.
- Lock in parental rights. A court order, such as a second-parent adoption, is recommended to make parental rights secure, even when both parents' names appear on the birth certificate.
- Know your safe states. In areas with an uncertain record on LGBTQ+ rights, it's important to know where your family would be protected in the event of upheaval.
- Stay engaged. Local and state protections matter. Back ballot measures and candidates who will uphold marriage equality in your state constitution.
Final Thoughts
Though it seems unlikely that Obergefell will be reversed
in the immediate future, it would be unwise to become complacent or
to assume it is beyond challenge. Now is the time to double-check
your legal safety net, because the best time to protect your family
is before the storm starts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.