Trump 2.0: How LGBTQ+ couples can safeguard their marriage

Some same-sex couples are worried about the status of their marriages under a new Donald Trump administration. Legal and financial experts don’t see an immediate threat to marriage equality, but they recommend some safeguards to put in place.

Trump has gone from supporting domestic partnerships for same-sex couples instead of equal marriage rights (in 2000, a common view at the time) to saying marriage should be left to the states to saying marriage equality is settled law. The kind of allies he has in Congress and those he’s appointing to his Cabinet and is likely to appoint to the Supreme Court if he has a chance aren’t exactly supportive, though. And Justices Samuel Alito and Clarence Thomas have said they’d like to overturn the court’s 2015 marriage equality ruling, Obergefell v. Hodges.That would take a case getting to the high court.

But how worried should same-sex married couples be? “I would like to think there is no reason to disrupt something that has worked so well for families, their children and society,” Mary Bonauto, senior director of civil rights and legal strategies at GLAD Law, who argued Obergefell at the Supreme Court, recently told The New York Times in response to readers’ anxieties. “It allows people to organize their families and affairs, pool finances, buy property and have kids. In the end, it is popular, and it harms no one.”

“But gay couples’ concerns aren’t entirely unfounded,” the Times notes. “The president-elect already reshaped the Supreme Court during his first term, appointing three conservative justices who are now part of a 6-to-3 majority.” Trump’s appointees, Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, joined Thomas, appointed by President George H.W. Bush, and Alito and John Roberts, appointed by President George W. Bush. The conservative justices have chipped away at the rights of same-sex couples, with decisions asserting businesses have the right to refuse service to them in Masterpiece Cakeshop and 303 Creative.Legal experts expect to see more “right to discriminate” cases.

With Alito and Thomas favoring the overturn of Obergefell — something Thomas reiterated in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, which overturnedRoe v. Wade and its national guarantee of abortion rights — Democrats responded with the Respect for Marriage Act, which wrote marriage equality into federal law. A few Republicans joined in its passage, and President Joe Biden signed it in December 2022.

The act provides for federal recognition of same-sex and interracial marriages (the latter legalized nationwide in the Supreme Court’s Loving v. Virginia ruling in 1967) and requires all states to recognize those performed in other states. It doesn’t, however, require any state to offer same-sex marriages, so states could cease offering these unions if Obergefell were overturned. Marriage equality opponent Kim Davis, a former county clerk in Kentucky, is trying to set up a case to overturn it.

Federal recognition comes with many benefits — “health insurance through a spouse’s employer, Social Security spousal and survivor benefits, estate tax advantages, retirement planning opportunities, pension rights and less cumbersome tax planning, among others,” as the Times article explains. In 2009, when marriage equality was limited to a few states, Times reporters Tara Siegel Bernard and Ron Lieber calculated the cost that came with lack of federal recognition, ranging from about $40,000 for a couple in the best-case situation and nearly half a million dollars for those in the worst-case scenario.

With uncertainly about the future, Jennifer Pizer, chief legal officer at Lambda Legal, suggests that same-sex couples make sure they have wills, medical and legal powers of attorney, and perhaps second-parent adoption confirmation for their children.

“It is always a very good idea for people, when they can, to prepare legal documents setting out their wishes for a crisis situation. … Take the steps that are within your power to take,” Pizer told the Times.