On June 26, 2015, the Supreme Court of the United States issued a ruling in the case of Obergefell v. Hodges, declaring that the fundamental right to marry is guaranteed to same-sex couples under the Constitution, and that all 50 states and the District of Columbia must grant these couples the same marriage rights guaranteed to opposite-sex couples.
By 2017, over one million Americans were legally married to someone of the same sex, representing around 10 percent of the overall LGBTQ American population. While celebration and embrace of gay marriage were swift and widespread, the last four years have revealed a number of difficulties facing same-sex couples.
A legal system unaccustomed to gay divorce has grappled with how to fairly and consistently litigate these cases. In addition to continuing attempts to overturn the ruling in Obergefell vs. Hodges, anti-LGBTQ organizations have turned their attention toward attacking the parental fitness of same-sex couples and seeking to erode their ability to adopt and foster children. The advent of the Trump administration has exacerbated fears of a disintegration and possible nullification of the right to marry.
On the matter of divorce, LGBTQ Americans are more likely to grapple with legal confusion and lack of precedent regarding same-sex divorces than outright discrimination. The fundamental issues to be settled in a divorce are the same for opposite-sex and same-sex couples: asset division, spousal support and child custody. All of these issues are made more complicated for same-sex couples who were in a “marriage-like” relationship for many decades before the legalization of gay marriage, but could not access the legal rights that came along with marriage.
Asset division is a particularly thorny issue for same-sex couples divorcing after long-term relationships. In divorce law, there are two types of property: marital property — all property acquired by one or more spouses during the course of the marriage — and separate property — the property that each spouse owned prior to entering the relationship, inherited or received as a gift addressed specifically to them alone.
Typically, separate property is not “on the table” in divorce proceedings; however, same-sex couples who began “marriage-like” relationships before Obergefell v. Hodges may have been forced to purchase property in separate names during their years where many same-sex couples are building wealth as a unit. Spousal support poses a similar problem: generally speaking, a spouse is more likely to receive spousal support the longer they had been married; however, in the absence of judicial precedents explicitly outlining how “marriage-like” relationships ought to be considered, judges are typically left to their own discretion. When it comes to child custody in same-sex divorces, non-biological parents are not automatically guaranteed custody rights, a fact which should encourage many same-sex couples to be proactive about securing full adoption. Although Donald Trump himself claims to be a supporter of the LGBTQ community, he has stacked his cabinet with many officials with disturbing histories of anti-gay statements and actions. In 2006, for instance, Vice President Mike Pence gave a speech in support of a constitutional amendment defining marriage as between a man and a woman, stating that “societal collapse was always brought about following an advent of the deterioration of marriage and family.”
In January 2017, Attorney General Jeff Sessions confirmed that he still opposed the decision of Obergefell vs. Hodges, and signaled that he believes each state ought to determine its own laws regarding the issue. LGBTQ advocates are particularly concerned that the addition of two Trump appointees, Neil Gorsuch and Brett Kavanaugh, to the Supreme Court could result in an eventual ruling to overturn gay marriage.
Two measures recently taken by the Trump administration are cause for grave concern for married same-sex couples looking to adopt, have children via surrogacy and create blended families. In January 2019, the U.S. Department of Health and Human Services granted federally-funded foster care agencies in South Carolina an exemption from federal rules barring such organizations from discriminating against potential parents on the grounds of religion or sexual orientation, a move which many believe will be replicated across the nation. Also in 2019, the State Department denied birthright citizenship to the infant daughter of two married American male citizens who was born in Canada on the grounds that, because she was conceived using an anonymous sperm donor, the infant’s birth was “out of wedlock” and she was, therefore, ineligible for citizenship.
Connie Vetter, a Charlotte attorney specializing in LGBTQ issues, finds this shift in policy particularly chilling because birthright citizenship is typically considered sacrosanct. “I can’t see any reason for it other than to be hurtful.” Like many other of the administration’s discriminatory policies, it is likely that this issue will be taken up in the courts.
Following the 2016 presidential election, many Americans, both within and without the LGBTQ community, felt an urgent need to take certain legal and medical actions “before it was too late.” Transgender Americans rushed to pursue name changes and legal revision of gender markers on official documents, and many people who feared becoming pregnant rushed to get birth control implants in anticipation of restricted access to birth control and a rise in anti-abortion legislation. When asked which if any of these actions LGBTQ people should consider doing before the 2020 election, Vetter says, “All of those things. If there is something you think needs to be done, do it now.”
Same-sex couples should be especially mindful of creating living wills and power-of-attorney documents in order to ensure that their spouse’s right to act as their representative in the case of incapacitation will be recognized even if the rights and responsibilities of legal marriage are withdrawn. Married same-sex couples with children who are the biological child of only one parent should also be proactive about adoption before a potentially more hostile environment for same-sex parents develops. Vetter stresses that any individual seeking legal services specifically relating to their LGBTQ identity should take pains to locate a lawyer who is actually knowledgeable and well-versed in the area.
When asked if she could have imagined 20 years ago that gay marriage would be legal nationwide within her lifetime, Vetter answers instantly: “Nope.” Even when it was, legally speaking, apparent that the decision was imminent, it was hard for her to wrap her head around the new reality until the Obergefell v. Hodges ruling came down. While the past four years have been full of many triumphs and affirmative unions, it is clear that same-sex marriage, adoption and divorce is hardly a settled issue legally, politically and culturally.