As you may know from the flurry of media coverage, Justice Clarence Thomas’ concurring opinion in Dobbs suggests an opportunity for dismantling Obergefell v. Hodges (the federal right to same-sex marriage under the U.S. Constitution), Griswold v. Connecticut (the right to contraception), and Lawrence v. Texas (the right to private intimate same-sex relations). As disturbing as Thomas’ suggestion is, it is important to emphasize that this appears only in a concurring opinion. The majority opinion, written by Justice Samuel Alito, specifically “declines to disturb” the precedent established in those cases. The majority calls out abortion, as compared to these other rights, as “critically different.” Additionally, in separate concurring opinions, both Justices Roberts and Kavanaugh suggested they are not supportive of overturning those precedents. That said, as was evidenced in Dobbs, the Justices can always change their position. For now, we do not believe there are five votes on the other side of these cases.
There are, however, several important factors to consider as we evaluate the risk to equal marriage and families with children whose parents are in same-sex relationships:
First, the right to equal marriage initially arose in 2003 from a Massachusetts Supreme Judicial Court ruling in the historic landmark decision Goodridge v. Department of Public Health. Nothing in Dobbs changes that. Certain other states issued similar decisions in subsequent years and still other states adopted legislation recognizing equal marriage. At the same time, certain states passed constitutional amendments, legislation, or had court rulings that went the other way recognizing marriage as valid only when between one man and one woman. That led to a confusing patchwork of rights around the country on a state and federal level for some number of years, especially with regard to federal law issues such as taxes and social security.
Recognition of equal marriage at the federal level arose under the Supreme Court decision United States v. Windsor. Under Windsor, if your marriage is valid in the state where it was performed and where you reside, then it must also be recognized at the federal level. That is less likely to change, we believe, based on the reasoning applied in Windsor. Obergefell decided two years after Windsor made equal marriage available to everyone in the U.S. based on certain constitutional principles.
We believe the risk of losing equal marriage rights now may arise in hostile states where constitutional bans against equal marriage were previously enacted. Massachusetts is not one of those states. If that happens, it will affect those couples and families who reside in, travel to, or die in those hostile states. Discussed below are ideas on how to protect oneself in these circumstances. If equal marriage is somehow denied in any of the hostile states, we strongly believe those couples already married would be “grandfathered” in. Whether such an attack on equal marriage would ultimately be upheld by the Supreme Court is uncertain, but for the reasons presented above, we think it is unlikely.
There are legislators in states other than Massachusetts working toward an anti-LGBTQ agenda. This includes Florida’s “Don’t Say Gay” bill and legislation targeting transgender youth and access to medical care. Some states are also attacking parental rights for families of same-sex couples with minor children. Formal judicial recognition of parentage is vital, especially in states where parentage may be questioned based on marriage. Simply being listed on a birth certificate may not guarantee parental rights. However, under the 2016 Supreme Court decision, V.L. v. E.L., judicial orders, such as second parent adoptions, must be recognized in every state under the Full Faith and Credit clause of the U.S. Constitution. Co-parent or second parent adoptions were recognized in Massachusetts in 1993 (Adoption of Tammy) and although you are married here, co-parent adoptions still provide the best protection for your family in the long run, especially if you move, travel outside the state, and/or die in another jurisdiction.
It is important to remember that following the decision of Roe v. Wade in 1973, pro-life activists built a strong political machine that increasingly gained momentum over the years, ultimately leading to the Dobbs decision. In 2015, Obergefell v. Hodges established the right to same-sex marriage in every state based on the same U.S. constitutional provisions that were the basis for Roe, Griswold (the right to contraception), and Lawrence (the right to private intimate same-sex relations). Obergefell has not (nor have any of the other cases mentioned) sparked the same level of anti-equal marriage (or anti-whatever) fervor. While there are anti-LGBTQ organizations hard at work passing laws to discriminate against our community, mostly based on claims to religious freedom, there is nothing (yet) as well organized, well-funded, and with as much political clout as the pro-life movement. In fact, a recent Gallup poll shows support for the right to equal marriage has increased from 58% in 2015, when Obergefell was issued, to 71% today.
While these developments are troublesome, there are many ways to use legal tools, such as second parent adoption, to mitigate these risks, particularly if these families travel to or move to these hostile states. In addition, traditional estate planning helps to safeguard against discriminatory legislation and protect families. A well-crafted will and/or trust, power of attorney, health care proxy, HIPAA release, along with other estate planning documents, give you and your family the power to manage your assets and protect your family regardless of legislation or statute.
We are here to support and guide you during these uncertain times. We have considerable experience with these issues. If you are a client receiving this message, please reach out to schedule a time to review your planning documents or to discuss concerns you may have. If you are an advisor and would like more information about how to counsel your clients on these important issues, we remain available to be a resource to you as well.