The election of Donald Trump as President has surprised and shocked many people. In light of statements made by President-elect Trump and many of his supporters during the campaign, as well of some of his announced appointments, the LGBTQ community has had grave concerns about possible negative policy changes affecting LGBTQ people during the next U.S. presidential administration.
Of paramount concern is whether couples will continue to have the protection of legal marriage. In the landmark United States Supreme Court case Obergefell v. Hodges, the Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. According to a Gallup survey it is estimated that there are now about 491,000 same-sex married couples in the United States so approximately one million people would be immediately impacted by the loss of marriage equality.
Couples who are already married are not in danger and there are no additional steps which they need to take to protect their marriages. There is not a realistic possibility that same-sex couples’ marriages will be invalidated. There is a strong legal argument that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. See for instance Strauss v. Horton the post-Proposition 8 California Supreme Court ruling which held that although Proposition 8 successfully amended the state constitution to prohibit same-sex marriages, any marriages performed before it went into effect would remain valid. So people who are already married should not be concerned that their marriages can be taken away.
To the contrary, it is important that they continue to live their lives as married couples, holding themselves out as such in all situations. In addition, all married couples should make sure that they have planned for what will happen if one of them passes away, through effective estate planning. This could be through a will or trust, or by designating one’s spouse as a beneficiary on financial accounts. Couples should also execute advance healthcare directives. If either spouse is older or has a disability, they have rights under Social Security and Medicare and may be able to receive more benefits as a spouse than on their own. If eligible for spousal Social Security benefits, one should apply as soon as possible because the start date for these benefits is tied to the initial date of application.
A secondary concern is whether individuals who are not currently married will still be able to do so in the future, or will this right be lost under the new administration. Getting married is a very important and personal decision, with a multitude of social, financial and legal implications, including over 500 state and over 1,000 federal rights, responsibilities and obligations which flow from the marital relationship. It is therefore not a decision to be taken lightly and it is not recommended that a couple rush into marriage so as to secure the relationship before the next president has been sworn in. It is highly unlikely that the U.S. Supreme Court will in the near future overturn its 2015 Obergefell decision requiring marriage laws to be equally applied to all couples regardless of gender. The doctrine of stare decisis means that courts generally will respect and follow their own prior rulings, and the Supreme Court very rarely overturns an important constitutional ruling so soon after issuing it. For instance, there was a seventeen year time lapse between Bowers v. Hardwick which upheld the constitutionality of a Georgia sodomy law criminalizing sex in private between consenting adults and Lawrence v. Texas which struck down a Texas sodomy law, explicitly overturning Bowers and finding that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment. Furthermore, although the new administration is very conservative, neither Donald Trump nor anyone associated with his campaign has indicated any serious or immediate intention to try to turn back the clock on the freedom to marry and the great majority of Americans now strongly support marriage equality. Clients can be safely advised that it is unlikely that the fundamental right of same-sex couples to marry will be challenged or that the Supreme Court would revisit its 2015 holding that same-sex couples have that fundamental right.
However it is urgent to emphasize that marriage equality does not necessarily create parentage equality. Under California law a child born to either partner during a marriage is presumed to be the legal child of both of the marital partners, and both partners can go on the birth certificate immediately upon their child’s birth. But merely being identified on the birth certificate does not guarantee protections if legal parentage is challenged in court, and the marital presumption of parentage is rebuttable. In some jurisdictions this presumption is very easy to rebut through evidence of the lack of a genetic connection. This means that being married to a birth parent does not automatically ensure that one’s parental rights will be fully respected if they are ever challenged, particularly if the family travels outside of California. There is no way to guarantee that both partners’ parental rights will be respected by a court unless they have obtained an adoption or court judgment of parentage. Without this, a non-biological parent could lose any right to their child if something happens to the other parent or if they break up in an “unfriendly” jurisdiction.
The consequences of this could be extremely dire. In the event of the birth parent’s death or disability, the child could end up in foster care or with a relative instead of being able to stay with the surviving parent. If a known donor is used in the conception process, depending on the situation, the donor could be considered to be a legal father unless any rights he may have are terminated via an adoption. If a parent ends up receiving Medicaid, TANF, or other government benefits, the government could bring a court case to declare the donor a legal father and require him to pay for the benefit the child receives. Should the couple break up in a jurisdiction which refuses to recognize the parenting rights of one of the partners, that parent could be denied all rights to custody or even visitation.
It is therefore strongly recommended that all non-biological parents get a second parent adoption court order recognizing that they are a legal parent, even if they are married and even if they are listed as a parent on the birth certificate. In a recent decision, V.L. v. E.L. in March 2016, the U.S. Supreme Court ruled that under the Full Faith and Credit Clause, Alabama must recognize the adoption decree previously granted to a same-sex couple by a Georgia state court, regardless of how that court came to its conclusion granting the decree. Thus a family will be secure and fully protected once an adoption has been finalized, regardless of where they subsequently travel or move. To facilitate this, California now has a streamlined step-parent adoption process which allows couples who were married or registered as domestic partners at the time one of them gave birth to use a simplified and expedited process to protect the non-birth parent’s rights. This law allows for the filing of papers in court for stepparent adoption with the adoption being granted without the time and expense of a home investigation, background check or court hearing.
There are many changes and challenges ahead as we navigate the new realities under the incoming presidential administration. It is important to know and understand the legal protections that are available to the LGBTQ client community as we approach this new period and consider what actions need to be taken.
 “Same-sex Marriages in U.S. since Supreme Court Ruling Estimated to Be 123,000,” CBSNews, accessed November 23, 2016, http://www.cbsnews.com/news/same-sex-marriages-us-supreme-court-ruling-estimate/.
 Mitchell, Travis. “Changing Attitudes on Gay Marriage.” Pew Research Center’s Religion & Public Life Project. 2016. Accessed November 23, 2016. http://www.pewforum.org/2016/05/12/changing-attitudes-on-gay-marriage/.
Ora Prochovnick is a professor at JFK University College of Law where she serves as Director of Clinical and Public Interest Law Programs. Ora has practiced law for over thirty years, with an emphasis on housing advocacy and protections for LGBTQ families.
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