When the US Supreme Court overturned Roe v. Wade, rolling back nearly 50 years of abortion rights, the threat of more to come cast a shadow on many, particularly those in the LGBTQ community.
Justice Clarence Thomas’ concurring opinion made clear the threat may be substantive. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote, referring to settled cases on contraception, sodomy and same-sex marriage, respectively.
But in his majority opinion, Justice Samuel Alito sought to tamp down fears about additional precedents being overturned, writing, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Nevertheless, many in the LGBTQ community are scrambling to identify how to protect their families should the court roll back same-sex marriage or if the states act on their own to rescind rights or access to key services.
“We know our families are worried. Frankly, we are, too. The court’s willingness to overturn almost 50 years of Supreme Court precedent is truly alarming – and the decision contains language that signals looming threats to other freedoms, like marriage, that are fundamental not only to LGBTQ+ people but to everyone,” said Shelbi Day, chief policy officer at Family Equality, an organization that works to advance equality for lesbian, gay, bisexual, transgender and queer families.
These are steps LGBTQ Americans can take now to help secure protections for their relationships and families preemptively ahead of any court rollback in rights. There’s no guarantee that LGBTQ rights will be taken away, but if they are, there is time to plan, Day said.
Understanding the landscape
It’s important to get a handle on what the current laws are and what could potentially happen after the recent abortion ruling, Dobbs v. Jackson Women’s Health Organization.
“What we urge LGBTQ+ families to remember is that while outrageous and concerning, the opinion in Dobbs – and Thomas’ invocation of Obergefell as ‘next’ – does not mean that Obergefell will be overturned,” Day said. “Marriage equality is still the law of the land.”
What’s more, leading legal experts said they believe that should the high court overturn Obergefell v. Hodges, the 2015 case that granted same-sex marriage federally, existing marriages may still be recognized.
“The consensus of opinion is that marriages which are valid at the time of entry should be secure and not subject to being voided,” said Denise E. Seidelman, a founding partner at Rumbold & Seidelman, a legal practice that focuses on family and adoption law in New Jersey and New York. “Obviously that gives little solace to people hoping to marry in the future.”
There are other looming legal threats for which LGBTQ people need to prepare, according to Day.
“The bigger issue will be challenges to the parentage of the nongenetically connected parent who is relying on their marital status to secure their parentage,” Seidelman said.
That means names on a birth certificate or a marriage license may not be enough to determine legal parentage.
“To protect themselves, it’s very important for same-sex couples to secure their parentage by obtaining a court order of adoption or order of parentage from a court since court orders are entitled to full faith and credit,” Seidelman said. “Couples – especially in hostile states – should not rely on their marriage, or both being on the birth certificate, to secure their parental relationship to their child.”
Resources such as GLAD, or GLBTQ Legal Advocates & Defenders, track various laws that affect LGBTQ communities by locality, including marriage and parenting, employment and health care, and can help provide a foundational understanding of what protections are offered in a particular state.
Actions that families can take
Once you understand the landscape, Day said, you can start to take actions to safeguard your family.
Seidelman noted that second-parent adoption, also known as stepparent adoption or an order of parentage, is a key way for LGBTQ parents, and particularly any who do not have gestational or biological ties to their child, to ensure legal protections.
Even if one’s state maintains same-sex marriage, there may be a patchwork landscape where some states recognize it and others do not. Not to mention you could also be traveling to countries where same-sex marriage is not legal, even before the court considers a case that could unravel that right.
Court orders are an important globally recognized legal document. The process to secure legal parentage through the courts varies by state. Groups such as GLAD and Family Equality offer primers and resources to help guide families through the process.
Some lawyers, such as Florida-based Ryanne Seyba, are also stepping up to offer services pro bono to help LGBTQ families with the legal services for second-parent adoption.
“We’re in this really shaky world where legal precedent appears to not matter, and we have judges that are going to rule with their values and it’s scary,” Seyba said. “We don’t know where our liberties are going to be in six months or a year. And so, to protect yourself and your family, it’s an easy thing to do, and we just try to provide as much assistance as possible.”
People should also draw up health care proxies, living wills and advance directives to assign who can make health care and end-of-life decisions. It’s also important to create wills and designate beneficiaries for all assets, including 401(k), life insurance policies, stocks and bank accounts.
It may also be worth checking to see which employers offer domestic partner benefits for continuum of health care coverage and related benefits should same-sex marriage no longer be recognized and couples and families need legal recognition or health care coverage.
Organizations such as Lambda Legal offer lots of resources, including a legal help desk to direct questions and overviews of legal protections for LGBTQ people by state. Firms such as Pride Legal offer estate planning services geared toward the LGBTQ community and can help advise people through tricky and nuanced environments.
“Many, like myself, already have children, and there is a certain level of anxiety among us for sure,” Ron Poole-Dayan, executive director of Men Having Babies, a network of thousands of current and future dads that also provides resources for LGBTQ families.
“As always, this mostly affects families who are situated in states where our rights are challenged,” Poole-Dayan said. “The anxiety also affects mostly those with more modest financial means, as it is scary to think that protecting your family might require expensive legal fights or relocation.”