A presidential inauguration is a time of anticipation in the nation. Regardless of who you voted for, there is an air of uncertainty about what laws and regulations will shift under the new regime. With President Donald Trump returning to office, this is especially true for members of the LGBTQ+ community and their families.
As an LGTBQ+-owned law firm, we share in the concerns about rights and the treatment of those in our community. What we won’t do, though, is waiver in our resolve to serve the people who have a right to legal representation that prioritizes defending what is owed and upholding our truth. While times may be turbulent, there are ways to protect yourself and your loved ones while preparing for the potential challenges to come.
What Happens If Same-Sex Marriage Is Overturned?
In 2015, the Supreme Court issued a landmark ruling in the case of Obergefell v. Hodges, establishing the right for same-sex couples to get married in the United States. While President Trump and his immediate advisors have not yet stated an intention to push the Republican-controlled Supreme Court to reconsider and overturn that decision, there have been influential members of the party (and Supreme Court justices) who have gone that far.
So, while some may suggest that this is never going to happen, it’s important to remember many said the same about the Roe v. Wade decision before it was overturned, eliminating the federal right to an abortion after more than 40 years of recognizing the fundamental right.
Should the holding in Obergefell be overturned, one of the most important things to remember is that changes to the law are almost never retroactive. If you are legally married today, the odds are extremely high that your same-sex marriage will be recognized even if Obergefell is overturned. If you are unmarried but in a serious same-sex relationship and considering marriage, the time to do that is probably now, before those decisions become reality.
Overturning same-sex marriage in this country would be an insult to the many brave individuals who fought hard for the right to marry in their community, and we know that the ACLU, our team here at Justly Prudent, and many other fervent advocates for the rights of the people will be in courtrooms across the country fighting back. Should this happen, barring a nationwide ban (unlikely), the right to same-sex marriage would fall back on the states to decide. A marriage license recognized in one state must be recognized in the next under the Full Faith and Credit Clause in Article IV of the Constitution. Ideally, a person in a state that does not allow for same-sex marriage would be able to travel to a state that does, and still thereafter have their marriage recognized in the unfavorable state.
Estate Planning as a Same-Sex Couple in a Trump Presidency
This brings us to the next point: Estate planning is going to be even more critical. If you are not legally married and are unable to do so, you should have important documents in place that legally tie you and your partner together. These documents include but are not limited to:
Living Will
Healthcare Surrogate
Power of Attorney
Trusts for any assets you intend to pass on to your minor children
Intestate laws favor spouses when the other passes away or becomes incapacitated, which won’t apply if you are not legally married. You should speak with an estate planning attorney to get those in place sooner rather than later, which we can help you with.
Establishing Parental Status and Rights
We’ll keep this simple: If you have not already established parental rights through adoption or a parentage agreement, do so now. This is the most expedient element of this because you are your child’s parent regardless of their biological history and need to protect those rights. These rights are binding and cannot be overridden, barring an extreme shift.
Being Who You Are
Members of the LGBTQ+ community who are looking to change their gender or name on legal documents should also act quickly. There’s no guarantee the right to change your legal gender in the eyes of the law will exist under Trump. A document doesn’t tell you who you are, but it does tell the government who you are, and if you want to be legally recognized as yourself without hindrance, then be sure to get the documents in place before it’s too late. This includes your driver’s license, birth certificate, and other sensitive documents.
Stay in Touch with Changes to the Law
This may be a turbulent time, and while we’ve “been here before,” there’s just no telling what a second term with empowerment from all levels of the government will look like under President Donald Trump. What we do know is that there will be fighters in your corner who are pushing back on decisions that impact your rights and your legal identity. We will be among them.
There are likely to be changes to the law that directly impact you and your family, so stay in touch with resources like the Justly Prudent newsletter, the Justly Prudent Facebook page, and reliable news sources that discuss these changes. If you need a legal advocate by your side to fight for your civil rights as a member of the LGBTQ+ community, Justly Prudent is ready to fight for you and your loved ones.