LGBT MARRIAGE RIGHTS IN THE NEW TRUMP ERA

The upcoming change of administration raises real concerns about LGBT rights, and particularly about the right to same-sex marriage (SSM). 

Marriage is fundamentally controlled by state law, but two important Supreme Court decisions have enshrined the rights of same-sex married couples in all states, and in federal law. 

The Windsor decision in 2013 guaranteed recognition of same-sex marriages for federal purposes.  The issue in that case was a matter of federal taxes.  A surviving spouse is fully exempt from federal estate tax when inheriting from a deceased spouse.  While Edie Windsor’s marriage was fully recognized under the laws of New York, where she lived, federal law at that time recognized only opposite-sex marriages.  Under that rule, Edie was regarded not as a spouse who was exempt from the tax, but as an unrelated party who had to pay the tax.  The Supreme Court recognized the marriage, and in so doing, required the federal government to recognize same-sex marriages from any state or other nation where they had been solemnized.  Federal recognition includes recognition for a wide array of legal matters: immigration, taxes, veteran benefits, and Social Security, to name a few. 

The Obergefell decision in 2015 did something very different.  It imposed a requirement on all fifty states to recognize and solemnize SSM.  Until then, some states allowed same-sex couples to marry and others did not.  Some states (such as New York) recognized SSM from other jurisdictions but would not allow same-sex couples to marry within the state.  Obergefell transformed this complicated patchwork of laws into a single, uniform rule that SSM was recognized and available in all states. 

We have recently seen that a significantly different Supreme Court reversed the 50-year old Roe v. Wade decision, transforming a uniform national rule into a complicated patchwork of highly contested state rules.  It is not hard to imagine today’s Court – or a Court with even more Trump appointees – doing the same with the Obergefell decision.  Obergefell may be particularly vulnerable to reversal, since it is widely regarded (as was Roe) as resting on thin legal reasoning.  The decision contained gratifying rhetoric about the dignity of marriage that all people are entitled to, but it did not argue compellingly that SSM is a necessarily implication of the law or the Constitution. 

Roe was overturned as a result of states enacting laws that violated it, which generated cases that gave the Supreme Court occasion to reconsider Roe.  With the new gust of conservative energy in our politics, we can reasonably expect the same thing to happen with SSM. 

If Obergefell is reversed, the status of SSM will be returned to the states to decide, as was the status of abortion following the reversal of Roe.  It is easy to imagine many states refusing to solemnize SSM going forward.  That would be a return to the status that existed before 2015 – a same-sex couple would have to choose a SSM-friendly state or nation as the location for their wedding.

The harder question is whether the recognition of existing same-sex marriages would be repealed.  That is a separate legal question, and, I think, a less likely result.  It is one thing to deny someone a right; it’s another thing to strip them of a right they already have.  Surely some states will enact laws that go this far.  The Supreme Court would have to decide whether or not to permit it.  It is conceivable that a Republican Congress could pass, and that Trump could sign, a bill to restore the traditional definition of marriage to federal law.  My sense is that this is a step that even the new Congress and even Trump and even the conservative Court are not motivated to take (though I can’t claim to be very good at political predictions).  I am not aware that the U.S. government has ever reduced the scope of rights that had previously been recognized.  Therefore, this would be a dramatic novelty in American law, and, if it were to happen, it could be a signal of an even darker trend.  Unprecedented events have been occurring with increasing frequency in recent years; we should keep a watchful eye out for this one.  

The legal protections of marriage are extensive.  Some are relevant only to certain groups of people (e.g., immigration), but the laws of inheritance, taxation and estate administration apply to anyone in a committed relationship.  In a separate post, I will address the concerns for personal legal planning that are raised by the threat to SSM, and the steps you can take to solidify your position and your plans.