After the U.S. Supreme Court reversed Roe v. Wade last week, many are now wondering if the court would go after same-sex marriage next.
Justice Samuel Alito, in his majority decision, wrote that nothing in its decision "should be understood to cast doubt on precedents that do not concern abortion." Justice Brett Kavanaugh, who supported the majority decision overturning Roe, also wrote that the court's decision was only focused on abortion. However, many fear same-sex marriage may be overturned next because Justice Clarence Thomas argued that the court should revisit three landmark cases that have also relied on the same legal reasoning as Roe v. Wade: Griswold v. Connecticut, a 1965 decision declaring that married couples had a right to contraception; Lawrence v. Texas, a 2003 case overturning sodomy laws and legalizing same-sex sexual activity nationwide; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry.
The three dissenting judges—Stephen Breyer, Sonia Sotomayor and Elena Kagan—were so concerned that they wrote that "No one should be confident that this majority is done with its work."They explained their concern, writing that "One of two things must be true," they wrote. "Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."
Whether the Supreme Court hears a case with the potential to reverse Obergefell v. Hodges is yet to be seen. However, many believe the religious right has been emboldened by the reversal of Roe and will indeed take on Obergefell. But, even if they do, there is no guarantee that the landmark decision would be reversed.
That is little comfort for same-sex couples, who are wondering what could happen to their legal status, especially same-sex couples who have children.
Yale Law School professor Douglas NeJaime said the concerns are valid, considering another Supreme Court case that was decided in 2017, Pavan v. Smith. In that case, the court required the State of Arkansas to list both women in a same-sex marriage as parents on their child's birth certificate. However, the three justices who dissented were Gorsuch, Alito and Thomas, three who recently voted in favor of overturning Roe.
"So, the concern is that states will say when a same-sex couple has a child and they are married, the non-biological parent is not a legal parent," NeJaime said. He also noted that Idaho and Oklahoma have been doing that in the past year, setting up another potential case in front of the Supreme Court.
The impact of not allowing a non-biological same-sex parent as a legal parent would have many negative implications, according to Courtney Joslin, a law professor at University of California, Davis, and the primary drafter of the 2017 Uniform Parentage Act which attempted to expand the establishment of parentage of non-marital children.
"it can mean that the child is not entitled to important benefits through that person," Joslin said. "For example, if the family dissolved, that person might not be able to seek custody or visitation with the child and that could mean that the child could be completely cut off from one of their parents. That is harmful and traumatic for the child. Additionally, the child might not be entitled to child support."
Both NeJaime and Joslin said the best way for same-sex parents to ensure that their parental rights are not put into danger, regardless if Obergefell is ever overturned but especially if it is, is to get a court judgment confirming their status as parents. I also advocate for this.
The reason to seek judgments confirming their status is because court judgements must be respected and enforced in all states, even if the judgment couldn't have been obtained originally in the state the parents reside in, Joslin said.
To obtain a judgement, same-sex parents can complete a second-parent or step-parent adoption. However, there are costs to it and it takes time, NeJaime said.
"Adoption doesn't happen immediately. In some states a home-study process is undertaken that can take about six months. In some states they will waive that because you're adopting a child that you've already been raising," NeJaime said. "There's also attorney fees and filing fees."
While this is true and one can make the case that the system should be improved, it is currently what we have to navigate. Whether or not a challenge to Obergefell is ever heard by the Supreme Court remains to be seen, but it's better to be safe than sorry, especially when it comes to your children.
Jeffery M. Leving is founder and president of the Law Offices of Jeffery M. Leving Ltd.,and is an advocate for the rights of fathers. He is the author of Fathers' Rights, Divorce Wars and How to be a Good Divorced Dad. Leving can be found on Twitter and Instagram @Dadsrights
