What if the Supreme Court Overturns Gay Marriage?

In a monumentally significant decision, the U.S. Supreme Court decided that the Constitution does not give the federal government the authority to regulate a states’ law on abortion in Dobbs v. Jackson Women’s Health Organization. With this ruling, the Court overturned its own landmark 1973 Roe v. Wade decision, allowing each individual state to regulate or ban abortions as they see fit. Now, a woman’s right to have an abortion can be legally denied by their state’s government.

In a concurring opinion, Justice Clarence Thomas wrote that the Court should next “reconsider” its previous decision on gay marriage. Justice Thomas is referencing the 2015 case of Obergefell v. Hodges, where the Court established that the Constitution does protect the right to obtain a same-sex marriage. This paved the way for thousands of loving Americans to marry and, by doing so, gain the protections marriage brings with it, including property rights, child time-sharing, and the right to be with and make medical decisions for a spouse when they are in the hospital.

The Dobbs decision, in conjunction with Justice Thomas’ words, have left the thousands of people in legally recognized same-sex marriages upset and nervous. Are their rights the next to be clawed back by the Supreme Court? In the event the Court does move in this direction, is there anything same-sex couples can do to proactively protect their rights?

The answers to these questions are not simple. The short answer is that in many states, including Florida, unmarried couples simply do not have the same legal protections as those who are married. Thier rights to share in property, obtain time with their child, receive medical information, make medical decision, and be with your partner during hospital visits do not exist.

But, with the assistance of a knowledgeable and creative attorney, some of these rights can be protected. Property rights agreements can secure your rights to property. Living wills, health care surrogacy agreements and a durable power of attorney can give partners peace of mind during a health scare. Issues surrounding child time sharing and upbringing decisions are more difficult, but same-sex partner adoptions are a possible route to secure these rights.

Here at DLB Law, we have come up with an emergency protection plan in the event that same-sex marriage rights are withdrawn. To learn more, or just to talk about these issues, please contact our office at your convenience.