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What does the next Supreme Court pick mean for gay marriage?

On Behalf of | Jan 20, 2017 | LGBTQ Family Law |

As we are aware, one of the biggest issues related to last year’s Presidential elections was the Supreme Court nominee selection after the untimely death of Justice Antonin Scalia. Although President Obama picked a well-respected and qualified partisan candidate to replace Justice Scalia, the Republican-held Senate decided to sit on that nomination for over 11 months with the hope that a new Republican President would choose the next Supreme Court Justice. Now, with President Trump, we are about to soon see the executive nomination, and a Senate who will be more willing to act on this nominee.

This has a lot of people who support LGBTQ rights concerned, especially gay and lesbian couples wanting to get married. There are a number of couples who have even felt pressure to plan weddings in the immediate days following the election, out of fear that a new Supreme Court might overturn the 2015 Obergefell v. Hodges decision that ruled the right to marriage is guaranteed to same-sex couples under the Constitution.


I am here to stress that while concerns are understandable, rerouting one’s life plan may be they’re premature.


Regardless of the incoming justice and how conservative they may be, when Obergefell v. Hodges was decided in 2015, Justice Scalia was on the losing side of the 5-4 vote. The five Supreme Court justices who ruled in favor of gay marriage are still on the court today.


Also, the current docket of cases the Supreme Court–determined in the fall for a nine-month session that generally follows the school year schedule–does not include a case in which the 2015 ruling would come up for review. While it may be it is possible to rush a case into the schedule, it is not likely.


Although it might not be reassuring to citizens who are currently concerned about how the court might change, some nominees from conservative presidents previously and currently serving on the court have actually ended up being far more liberal in their decision making causing verdicts to be decided in an unexpected way in a number of cases.


My concern for LGBTQ couples who may not be ready for marriage is that they might feel that they have to hurriedly move forward now without the same insight and forethought they would have had, had they waited, and then discover that they want to divorce later.


Marriage does offer some legal protections to couples that are beneficial, but there are a range of options in probate law that offer similar protections–particularly documents granting power of attorney and medical power of attorney rights. You can also use a pre-nuptial agreement to show your intention of getting married, and write protections into that document.


Ultimately, what you need from a lawyer depends on what your specific concerns are, and the best way to determine that is to have a meeting with a family lawyer who works with LGBTQ couples. I am proud to be one of those lawyers, working for a firm that has long championed the rights of our LGBTQ clients. Rest assured that if even if you’re not ready for marriage, you have rights that can be protected and that will allow you to move forward confidently as a couple.