You have been by our side for a long time, through moments of thrilling victory and through many moments of peril and uncertainty as well. We know you look to us to do our research, be one step ahead of our foes, and be ready to pivot and fight until we win the rights and achieve the lived equality we all deserve. Rest assured, we are working harder than ever to respond to inequities and create a more just world.
This past week, Supreme Court Justice Samuel Alito, joined by Justice Clarence Thomas, authored a concurring opinion blasting the Court’s holding in Obergefell that LGBTQ people have a constitutionally protected right to marry, describing Obergefell as “ruinous” to religious liberty, and calling on the Court to create new religious exemptions to permit discrimination against married same-sex couples.
While these remarks were distressing to read, they conveyed nothing new about where Justice Alito and Justice Thomas stand. They were not joined by any other justices. And if anything, it is notable that even they appeared to assume that Obergefell will stand, and that their best strategy as opponents of LGBTQ equality is to call for new religious exemptions, not for reversal of marriage equality.
Nonetheless—and understandably–those remarks have sparked widespread fear in our community, with many people asking whether their marriages or parental rights are at risk. Nothing in this day and age can be predicted with certainty; however, you deserve our best legal assessment. We have many real and imminent battles to ensure the safety and equity of our LGBTQ community, and we do not want these remarks to panic us and distract from what is right in front of us. Right now.
We do not believe the Court is likely to reverse Obergefell, even if Amy Coney-Barrett or another justice appointed by Trump is approved by the Senate.
A more realistic concern is that the Court may create new religious exemptions that permit discrimination against same-sex couples in a variety of circumstances. For example, in the Fulton case already before the Court, it may hold that religious foster and adoption agencies can refuse to certify or place children with same-sex couples, even when those agencies are providing their services under a government contract using taxpayer funds. The Court may permit wedding-related businesses to deny services to same-sex couples or allow healthcare providers to deny transition-related care or assisted reproduction services to LGBTQ people.
In the unlikely event the Court did reverse Obergefell, it would not retroactively invalidate marriages, so people who are already married have no reason to fear that their marriages will be invalidated or nullified.
We are sharing this information with you because, while Justice Alito’s remarks are scary – and could be used to instill fear and promote fundraising – we believe that you and NCLR are partners for the long haul. We know that our entire community is better if we are ALL informed and armed with the knowledge we need to defend our incredible gains and continue to make progress.
As a practical matter, the advice we offer is to make sure you have taken steps to protect your family relationships and financial affairs. Even for married couples, if possible, obtain a second-parent adoption or a parentage judgment, even if you are already presumed to be a legal parent based on your marriage or under your state’s parentage law. Having a judgement of adoption or parentage provides enormous additional legal protection in the event your parental rights are ever challenged.
Additionally, it is always wise to make sure you have a will or whatever estate planning tools make sense for you, as well as powers of attorney for healthcare and finance. These are the same precautions we advised couples to take before we had nationwide marriage equality, and they continue to make sense now, in this uncertain political and social environment where we may be more likely to encounter hostility and possibly even legal challenges to our family rights.
As always, if you have specific legal questions, please do not hesitate to reach out to our legal helpline at 800-528-6257 or firstname.lastname@example.org.
Thank you for your commitment to NCLR. We are sobered by this moment, but not daunted. We have faced difficult times before, and we have not only prevailed, but have found ways to use opposition to our families and our freedom to build more public understanding and support. We can do so again, and we will.
The immense job of protecting our rights is one we undertake with pride. We are honored to have you by our side.