Same-sex couples worried about marriage equality in light of Roe v Wade

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Leaked Roe draft has same-sex couples bracing for an end to marriage equality: ‘Nothing’s impossible’

They drove down I-40 to Asheville with flowers, skirting the Great Smoky Mountains National Park on their way across the state line. Samuel Steinbruegge and his partner had been together since 2008; six years later, living in Knoxville, they decided to get married in North Carolina, where same-sex marriage was legal. Steinbruegge, a trans man, had not yet transitioned, so the couple could not marry in Tennessee. After the ceremony, they celebrated with close family at a restaurant and drove back home.

The next year, same-sex marriage became legal nationwide, and Steinbruegge and his wife began fostering children — a process that would bring 14 children into their home, three of whom they adopted. Steinbruegge, a social worker, said that the couple’s Christian faith motivated them to build their family through foster care: “We’re supposed to take care of widows and orphans, and what better way than to open your home?”

Had the two not been married, their dream would have been all but impossible. “We would not have been able to do that outside of being legally and federally recognized as a married couple. That was a huge game-changer for us,” he said. “It made us visibly a family in the eyes of the people around us.”

Now, he’s wondering whether families like his will even be possible in the future.

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Questions like these have circulated in the LGBTQ community following the leak of the Supreme Court’s draft decision in Dobbs v. Jackson Women’s Health Organization, which, in its current form, would overturn a decadeslong precedent guaranteeing the right to an abortion. In the aftermath of the leak, a secondary conversation has focused on whether other rights — in particular, marriage equality, which the court granted in its 2015 Obergefell v. Hodges decision — will be at risk if the draft is finalized without substantive changes.

A number of families, particularly in states that did not allow same-sex marriage before 2015, are bracing for a challenge to Obergefell and thinking about steps they might take to prepare for that possibility. In interviews with Grid, legal experts cautioned against panic but agreed that families may want to get ready for a future in which same-sex marriage is no longer legal at the national level.

Lawyers, advocates and people from 10 states that did not allow same-sex couples to marry before 2015 said they are doing just that. In many states, the reversal of Obergefell could bring an immediate end to same-sex marriage. Those include Georgia, Kentucky, Louisiana, Michigan, North Dakota, Ohio and Tennessee — which had outright bans on same-sex marriage — as well as Alabama, Kansas and Missouri, where marriage licenses were granted to same-sex couples only in some areas. Those interviewed expressed confusion and worry for their families, particularly with regard to parental rights. Those are currently at the center of a legal battle in Texas, where the state Supreme Court recently issued a key ruling in an ongoing lawsuit challenging the state’s policy limiting the treatment parents may pursue for trans children. In its decision, the court barred enforcement of the policy against the family who brought the lawsuit while the litigation is ongoing, but left open the possibility of future investigations against other families.

Justice Samuel Alito’s draft opinion in Dobbs discusses which rights are conferred by “substantive due process,” protections under the 14th Amendment that underlie the decision in Obergefell as well. In the Dobbs draft, Alito states that other matters would not be affected, noting that “our decision concerns the constitutional right to abortion and no other right.”

But in the draft opinion, other language limiting “substantive due process rights” has lawyers — and some families, particularly in states that did not allow same-sex marriage before 2015 — bracing for a challenge to Obergefell and thinking about steps they might take to prepare for that possibility.

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As Grid’s Chris Geidner has reported, the argument used in Dobbs could apply to other recent wins for LGBTQ civil rights, and Alito’s language in the draft opinion is similar to his dissents in Obergefell and United States v. Windsor, the Supreme Court decision that in 2013 struck down the federal Defense of Marriage Act. The decision in Windsor meant that married same-sex couples could apply for federal benefits for the first time, including immigration benefits — raising the question of how couples with different immigration statuses would fare under a challenge to marriage equality.

But Obergefell also rested on the equal protection clause, as Justice Anthony Kennedy explicitly stated in that case’s majority opinion: “The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”

Jon Davidson, a senior staff attorney at the ACLU LGBTQ & HIV Rights Project, pointed to the equal protection language in Obergefell as a significant argument in defense of marriage equality. Still, he and other advocates noted that they would not have expected the court to reverse precedent on abortion, either. “It’s not like I’m not worried at all,” Davidson said. “I think we would have very good arguments that Obergefell would stand regardless — but they’re arguments.”

Even if national marriage equality ended in the U.S., Davidson described it as “very, very unlikely” that existing marriages would be invalidated, pointing to the complicated cascade of legal effects that would result from such a decision. Also, “it’s not quite clear who would have standing to challenge the validity of a same-sex couple’s marriage,” he said.

Still, Sydney Duncan, an attorney at Birmingham AIDS Outreach in Alabama, said that her organization is “receiving queries from our clients daily, practically. People who are worried and concerned — mostly [about] the family that they have, the family that they’ve already started.”

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“Have other paperwork”

Densil Porteous, executive director of Stonewall Columbus, an LGBTQ nonprofit and community center in Ohio, is raising a 5-year-old daughter with his partner. The couple plans to marry at the end of May, after which Porteous’ partner will begin the process to adopt their daughter. Porteous noted the shift in visibility for queer families that has taken place since he first moved to Columbus in 1998. “I can think back to early in this phase of my life here in Columbus when we didn’t see many queer families with young people or queer couples with kids. Now, everywhere I turn, I think I bump into someone, which is a beautiful thing,” he said.

For some of those families, particularly those concerned about a threat to Obergefell, it may be a good idea to consider taking additional legal steps to reinforce their ties, family law attorneys said.

“I would encourage anyone, particularly in states that are hostile to LGBTQ+ rights, to reach out to attorneys, to seek legal advice, to be proactive in understanding their rights, and really to pay attention to what your legislators are doing,” Heather Fann, an attorney in Birmingham, Alabama, said. “Your rights may be next on the chopping block if you’re not careful.”

Duncan, of Birmingham AIDS Outreach, recommended that partners make a living will to clarify their wishes in the event that they become medically incapacitated. And Madeline Johnson, an attorney based in Platte City, Missouri, recommended having an estate plan, “something that provides for succession of property and inheritance of property, should something happen.”

“I would continue to advise my clients as I have been advising them: Have other paperwork,” said S. Mandisa Moore-O’Neal, an attorney in New Orleans.


This is especially wise for same-sex couples with children, Moore-O’Neal said. “If you have children from a previous relationship or via a surrogate or insemination, get the adoptions done as soon as possible,” she said. “Nothing’s impossible, but it’s a lot harder to not recognize somebody who has adopted a child.”

Several attorneys underscored the importance of the adoption process, while noting that adoption is costly and not accessible to everyone. Johnson recommended that parents create a written statement detailing their preferences about who would care for their children if one of them were to die or become incapacitated.

In 2017, the Supreme Court ruled in Pavan v. Smith that a state law barring two married same-sex parents from being listed on a child’s birth certificate was unconstitutional, a decision that relied on Obergefell. Davidson, of the ACLU, pointed to that decision as a recent precedent that favors queer families. At the same time, Davidson said, “if Obergefell were to be reversed, in the states that didn’t get marriage under their state constitution, I think we would see, in those states, efforts to treat the children of same-sex couples born during the marriage differently.”

Domestic partnerships and alternative language

Before Obergefell, a complicated patchwork of local and state laws governed LGBTQ people’s rights to many of the basic foundations of a life, including a partnership, home and family. Marriage equality immediately granted more than 1,000 additional legal protections to those couples in states that did not allow same-sex marriage before 2015 — including immigration benefits, tax benefits, participation in federal assistance programs and more. Couples living in states that did not allow same-sex marriage described Obergefell as a sea change, bringing the ability to create a home and family anywhere without fear — or, at least, with the assurance of legal protection.

But they also described a growing sense of backlash, particularly from state politicians who have pursued bills targeting LGBTQ rights. “In many of our states following the marriage ruling, opponents felt cornered in a way — that they had lost some ground — and so the attacks on the queer community at state legislatures across the nation became far more fierce than we had seen in recent years,” said Chris Hartman, director of the Fairness Campaign in Kentucky.

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In Tennessee, one such attack recently took direct aim at same-sex unions. State lawmakers this year introduced a bill to create a separate kind of marriage contract for heterosexual unions, a move meant to accommodate religious officials who do not want to perform same-sex marriages. The bill — which was delayed after critics pointed out that it did not specify a minimum age, technically allowing child marriage — died in session.

Rachel Levitt, a professor a professor of gender, women and sexuality studies at Kansas State University in Manhattan, Kansas, pointed out that before 2015, a number of employers — particularly in states that lacked same-sex marriage — provided benefits based on domestic partnerships. While this language largely disappeared from workplaces after Obergefell, Levitt said, employers could reinstate it if Obergefell was challenged.

Levitt and two colleagues recently emailed their university’s Office of Institutional Equity to ask if it has a plan in place. “Should we be thinking about, if this gets overturned, what kind of infrastructure do we need, to catch people before benefits get lost in the shuffle? Do we need to have preventative measures in place?” Levitt asked. “We were like, ‘Hey, if this is coming down the pipeline at some point, we need to resurrect some of that language and policies as a prophylactic.’”

Levitt, who is nonbinary and transgender, married their wife in Kansas during the pandemic, a decision that they said was mainly necessitated by their need for healthcare. “We both almost died when we got covid,” Levitt said. “It was really, really scary for us.” Still, Levitt described marrying as a “really difficult decision,” expressing the deep ambivalence that many queer people feel about an institution historically rooted in patriarchal attitudes toward women and property. “Marriage is not the end-all-be-all liberation,” Levitt said, but in cases like theirs, it can help people “make sure that we can get nebulizer treatments when our lungs are shutting down during a global pandemic.”

“Fighting for what we don’t yet have”

Most of those interviewed emphasized that marriage equality never meant the end of bigotry in the U.S. Timothy Love, the plaintiff in Love v. Beshear — a Kentucky lawsuit that was rolled into Obergefell — today lives in Louisville, Kentucky, with his husband. The two of them have been together since 1980. “We were both 21,” he said. “That was right before the AIDS crisis hit, and I guess because we were a committed couple, we basically saved each other’s lives.”

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He noted that it was still “frightening” to travel to other parts of the state, where some people still express open disdain or worse against LGBTQ people.

“I guess I’m supposed to be strong,” Love said. “I’m supposed to not fear and show a strong face to the rest of the gay community and say, ‘Oh, we’re gonna come back.’ But when you see that it looks as if [the Supreme Court is] really going to overturn Roe — it just seems like the next logical step is marriage.”

It’s important to note, though, that the conversation about marriage equality is “not the only conversation right now,” Porteous, of Stonewall Columbus, said. “Yes, we are concerned about Obergefell … but we are also at the same time concerned about the rash of anti-LGBTQ legislation that’s already in process. We are fighting for what we have, and we are fighting for what we don’t yet have, and we are fighting to protect what is seemingly hanging by a thread.”

Clarification

An earlier version of this story did not include Rachel Levitt's full title. This version has been updated.

Thanks to Lillian Barkley for copy editing this article.

  • Corinne Segal
    Corinne Segal

    Freelance Reporter

    Corinne Segal is a writer and editor based in New York.