You’re probably aware the Supreme Court overturned Roe in June of this year. In the aftermath, a close friend asked me how same-sex couples can protect themselves if same-sex marriage is banned. Many Americans have been wondering the same thing. A legitimate fear since Justice Clarence Thomas in his concurrent opinion said the Court “…should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
First things first: What’s a concurrent opinion?
That’s when a Justice agrees with the ruling of the Court (the Majority Opinion) BUT has a different reason than the rest of the Court OR a different view that wasn’t included in the Majority Opinion. Concurrent Opinions are NOT binding nor are they considered precedent. They can be used by lawyers to persuade a Judge to do something but, because Concurrent Opinions are not binding, the Judge can say no. Majority Opinions, on the other hand, are the law of the land, all Courts MUST follow them. Enough legal talk: lets move on to what you came here for.
What are the cases Thomas singled out?
There are three: Griswold, Lawrence, and Obergefell. Griswold was decided in 1965, giving married couples the right to birth control. Lawrence, decided in 2003, invalidated sodomy laws across the Unites States. Before that case, many states had laws criminalizing sodomy. Obergefell, decided in 2015, legalized same-sex marriage nationwide. Before Obergefell many states, including Florida, had laws making same-sex marriage illegal. These laws, for the most part, are still in the books.
These three cases are currently the law of the land. But so was Roe… for 49 years. So the question on many people’s mind is: is same-sex marriage next?
Is same-sex marriage next on the chopping block?
Most Americans support same-sex marriage. Does that mean same-sex marriage will remain legal nationwide? No one can really say. It will be up to the Court. For the Court to even consider this issue a case would have to be brought to them, which hasn’t happened yet.
Despite nationwide acceptance of same-sex marriage, LGBTQ rights continue to be eroded. According to the American Civil Liberties Union since 2018, hundreds of anti LGBTQ bills have been introduced across the nation. These bills range from school curriculum bills, like the Florida Don’t Say Gay Bill, bills that allow for discrimination of LGBTQ people based on religion, and bills limiting trans people from playing sports, getting gender-affirming health care, or even using bathrooms corresponding with their gender identity. Taking all this into consideration its reasonable for people to fear what comes next for same-sex marriage.
If Obergefell is overturned, whether same-sex marriage is legal would come down to what state you live in. Florida has a Statute banning same-sex marriage. Under Obergefell this law isn’t valid. If Obergefell is overturned, Florida would no longer recognize same-sex marriages unless that law is changed.
What can I do to protect my family?
I can only answer this question from an estate planning view. Please know this is not intended to be legal advice, only an attorney that understands your unique circumstances can give you that. Here are a few documents that could give you protections like those given by marriage.
Power of Attorney: through a Financial Power of Attorney whoever you name has the authority to act on your behalf on financial matters if you’re incapacitated. If you don’t decide the court decides for you and they can appoint whoever they think fits the role. They’ll likely appoint your next of kin which wouldn’t be your spouse if the marriage isn’t valid.
Designation of Healthcare Surrogate: This document gives whoever you pick the authority to make medical decisions for you if you can’t. Again, this is something your spouse would be able to do as your next of kin. If the marriage is not valid, they would no longer be next of kin. Who will the court appoint if you don’t have a document detailing who you want?
Guardianship documents: If you have kids, you can name the non-biological spouse as guardian for your kids. If something happens to the biological parent, the kids would be placed in the care of the named guardian. If you don’t have a document legally telling the court who you want to raise your kids, the court will decide for you. Your kids could go to a blood relative who you never wanted to raise them.
These documents won’t give you the same protections or benefits that a marriage does. They do provide some protection, however, and are a good tool to plan for the uncertain. These documents will be valid regardless of marriage status.
If you haven’t done so already, you might want to speak to an adoption attorney. Florida has legalized same-sex adoption. Even if Obergefell is overturned, same-sex adoption should remain legal in Florida. Consulting an adoption attorney might be the best way to protect your rights as a non-biological parent.
Conclusion
There are other things you can do to protect your spouse and family: if you own property together, how is it titled? Do you have a Will or Trust? Who are your beneficiaries in that Will or Trust? Who is the beneficiary for your retirement account or life insurance policy? Taking a few steps now to protect yourself and your family will give you peace of mind if same-sex marriage is no longer legal in Florida. If you’d like to get in touch with me or schedule a free 15-minute all to see if I can help you protect your family, click here: Haz una cita, oremail me at [email protected].
The information in this post is not intended as legal advice and you should consult an attorney to discuss all your options.
