Will Obergefell Survive The New Supreme Court? The Answer is Yes… For Now

Will Obergefell survive the new Supreme Court?

12/14/2020 – IMPORTANT UPDATE

This morning the Supreme Court denied the Indiana Attorney General’s petition in the Henderson v. Box case.  This is very good news for fans of equality.  This signals the court’s willingness to uphold the Obergefell decision and allow marriage equality and family equality to apply to same-sex couples!!

My Original Article

This is the greatest concern / fear of many in the LGBTQ community.  From the moment we learned of the heartbreaking death of Ruth Bader Ginsburg, this question became the most frequently asked by scholars, activists, lawyers and members of the LGBTQ community.  What started as a hypothetical question became real on Monday, November 23, 2020.Will Obergefell survive the new Supreme Court

What happened? 

The Attorney General for the state of Indiana petitioned The Supreme Court in the case of Box v. Henderson, which poses the question, “Does a married same-sex parent have the same rights as a heterosexual married parent in regards to the presumption of parentage which attaches to marriage?”  The presumption of parentage is the rule of law that creates a legal relationship between the spouse of a woman who gives birth to a child and the child to the spouse of the birth mother.  How does this effect the Obergefell decision, which made marriage equality the law of the land in June of 2015?  The answer to that question poses serious issues of equality and judicial conduct that we are just beginning to understand.

What did Obergefell say?

Will Obergefell survive the new Supreme Court?  First, we need to understand exactly what Obergefell said.  In the Obergefell decision, the court stated not only that all states must issue marriage licenses to same-sex couples, that other states must recognize same-sex marriage licenses and that same-sex couples are entitled to marriage, “on the same terms and conditions as opposite-sex couples.”  That means that all protections, including the marital presumption of parentage, shall redound to same-sex married couples. 

Judicial bias?

The arrival of Box v. Henderson at The. Supreme Court is questionable for a few reasons.  First, the case was last heard in the 7th Circuit Court of Appeals, where a conservative three judge panel unanimously upheld the protections conferred in Obergefell to the 8 plaintiff married couples who are the heart of this case.  But, they waited 3 years to issue an opinion.  The average time between when this court hears a case and when it issues its decision is 3 months.  If this case was handled in the normal time frame, it would have been before a Supreme Court that had already decided this issue twice before in favor of extending all marriage rights to same-sex couples.  But now the court make-up is different, which leads me to the second issue that raises concern: the current Supreme Court requested that the Indiana Attorney General make the Writ of Certiorari, the petition to hear the case, directly.  Why would a court that has twice decided an issue ask to rehear that same issue?

Will Obergefell survive the new Supreme CourtThe court first decided this issue in Obergefell, and then again in 2017 in the case, Pavan v. Smith.  In Pavan, the court held that states must issue birth certificates to same-sex couples in the same manner they issue them to opposite-sex couples.  This means that the presumption of parentage (once referred to as the presumption of paternity) would make the father of a child born to his wife, even if that child was conceived with donor sperm, the legal parent of that child.  The 8 plaintiff couples in the Box case are asking the court to have the presumption apply to their marriages the same way it applies to heterosexual married couples, even when there is not a biological connection between the spouse of the mother and the child. 

To answer the question, “will Obergefell survive the new Supreme Court?”, we must look to the strained strategy of the Indiana Attorney General, Curtis Hill.  Hill is falsely declaring that a state should have the ability to acknowledge the, “biological distinction between males and females.”  He is inferring that because only a man and a woman can biologically have a child together, only an opposite-sex married couple should have the protections that the martial presumption of parentage applies.  Furthermore, one plaintiff couple in the Box case includes a woman who donated her egg to her partner who then gave birth.  Both parents are “related” to the child under the law. 

States rights

This insidious “state’s rights” approach gives the new conservative majority on the Supreme Court, the ones who asked for this case to be heard in the first place, the ability to drive a wedge directly into the heart of marriage equality.  If the conservative Supreme Court sides with Indiana in Box, it will allow other states the ability to make distinctions between same-sex marriage and opposite-sex marriage.  It would mandate that same-sex parents go through a costly and invasive adoption process to secure their legal right as a family.  What the court would fail to realize is that the children would be the victims of this strategy.  Leaving a child in legal limbo only serves to create insecurity in that child’s family. 

Will Obergefell survive the new Supreme Court?  We will soon get a clue.  The new Supreme Court recently heard the case of Fulton v. The City of Philadelphia, which asked whether, among other questions, the government violates the First Amendment by defining a religious agency’s ability to participate in the state sponsored foster-care system mandating the inclusion of same-sex couples as foster parents.  This religious liberty approach to equality, I fear, will be the first sign of the new Supreme Court’s willingness to strip the rights of same-sex couples away. 

What can we do?

If there is anything to learn from this potentially disturbing road that the court appears to be heading down, it is to fight at your local level to ensure that protections are in place and that equality in marriage is preserved.  Do everything you can now to prepare for the worst: get your estate plan in place, petition for a step-parent adoption or birth order if your state allows and start telling all of your friends and family about what is going on. While we may have thought that battle was a thing of the past, we are still warriors.  We have always had to fight to protect our relationships and families, we know how to do it. 

Anthony M. Brown, Esq. – www.timeforfamilies.com November 28, 2020

in Anonymous/Known Donation / Estate Planning / Featured Articles / Known Donor / Legal / Religious / Second Parent Adoption / Supreme Court  by Anthony Brown 0 comments

Gay rights – Why religious freedom bills could be just the beginning of the gay marriage debate

Gay rights vs. religious protections feels like the social battle of the moment right now, and it might not go away anytime soon.

In the wake of the June Supreme Court ruling legalizing same-sex marriage, dozens of states have considered or are considering legislation to give Christians and other people protections from doing something that violates their religious belief. It’s got LGBT advocates playing whack-a-mole across the nation as they argue that these laws amount to sanctioned discrimination of gay rights.

Three battles in the South over gay rights in particular have made headlines. Mississippi recently passed a sweeping bill allowing  businesses, religious institutions and state government employees to refuse service to LGBT people. Georgia’s Gov. Nathan Deal (R) vetoed a bill aimed at protecting religious institutions from having to perform same-sex marriages. And then there’s North Carolina and its bill limiting public bathrooms and locker room access for transgender people, which is a whole other issue for another day.

We spoke to Rochelle Finzel,  director of the children and families program with the nonpartisan National Conference of State Legislatures to get a better feel for why this seems to be taking up so much oxygen now — and what could come next. It’s important to note that Finzel and her staff don’t take any positions on policy; rather they track the legislative trends related to family law. Our conversation has been edited for length and clarity.marriage equality

THE FIX: There’s a perception that laws protecting religious institutions and officials from having to perform same-sex marriages is a new phenomenon this year. But really, the 13 states that legalized same-sex marriage through state legislation included religious freedom protections too, right?

Finzel: That’s right. In some states that was the compromise; the only way they were going to get their legislation passed to legalize same-sex marriage was to make sure those religious officials were protected.

What’s happening now, after the Supreme Court ruling where now all states have to recognize same-sex marriage, I think it raised those same concerns of: How do we make sure the law is protecting those whose religious beliefs do not necessarily support same-sex marriage? So these conversations have been a little bit broader than just the solemnization question.

THE FIX: So you’re saying these new bills are controversial in part because they’re expanding beyond protecting religious institutions to how to protect the average person on the street who doesn’t agree with same-sex marriage for religious reasons? Is that a new debate?

Finzel: From my vantage point, that’s new.

The bills that have generated the most controversy and the legislation that ultimately most states, besides Mississippi, have  vetoed, that’s been where that controversy has arisen. And certainly where you see the business community weigh in.

It raises the question of: Are we then allowing discrimination if a person is able to deny services or benefits to someone based on their religious beliefs? We’re protecting one set of beliefs, but then is it discrimination on the other end? And that’s been the real question. But we are very early on in this conversation on gay rights.

THE FIX: How do you see this conversation evolving?

Finzel: This is new territory for states. They’re trying to think about the implications of same-sex marriage across a whole host of issues, from the religious protections as well as some of the family law. I think certainly the emphasis and focus right now is just on same-sex marriage and recognizing same-sex marriage.

The next piece will be, now that we have same-sex marriage and also have same-sex parents, what are the implications in terms of custody, parentage, paternity and all those related issues — child support, child custody, adoption.

THE FIX: When the Supreme Court legalized same-sex marriage in June, was your reaction like, ‘Oh man, get ready for this huge legislative battle in the states,’ or have all these developments surprised you?

Finzel: It may have happened more quickly than we had anticipated. But it certainly has been on our radar. We were thinking, ‘What will this do for family law?’ And I’m not so sure that anyone really has all of the answers to that question yet.

THE FIX: Why are bathroom bills happening in conjunction with all this?

Finzel: That’s a good question. Maybe it’s a question to pose to some of the advocates on these issues. Has that been part of their platform as well?

THE FIX: Is it fair to say the religious protection vs. gay rights discussion has been centered in the South, which tends to have a higher concentration of social and religious conservatives who don’t necessarily agree with same-sex marriage?

Finzel: I think it’s a discussion around the country. All states are — and especially where the Supreme Court ruling was the first time they had to recognize same-sex marriage — sort of deer in the headlights, like, ‘Okay, what do we do?’ And I would say that’s across the board.

There are some that are looking at family law, some looking at how we change the language of our statutes so they reflect a more gender-neutral portrayal of family structures. We see more activity in the Republican states, but it’s not that it hasn’t been introduced or discussed in Democratic states. Family issues are not partisan.

by Amber Phillips, Washington Post – April 13, 2106

Click here to read the entire article.

in In the News / Legal / Legislation  by Anthony Brown 0 comments

Ban On Same Sex Marriages Still In Effect

Ban On Same Sex Marriages Still In Effect Alabama Chief Justice Says

Alabama Chief Justice Roy Moore’s latest move stating ban on same sex marriages is still effective is “sad & pathetic,” Montgomery County Probate Judge Steven Reed tweeted on Wednesday.

Alabama Chief Justice Roy Moore, in an administrative order issued on Wednesday morning, announced that a ban on granting same-sex couples’ marriages remains in effect in Alabama until a specific court order is issued to end the ban.

Specifically, Moore wrote that a prior order of the Alabama Supreme Court that barred probate judges from issuing marriage licenses to same-sex couples remains in effect.

Moore’s order, however, makes no mention of a contradictory federal court injunction issued this past year.

The U.S. Supreme Court decision from this past June in Obergefell v. Hodges, Moore wrote, only specifically struck down the marriage bans in Kentucky, Michigan, Ohio, and Tennessee. While it is precedent that would be applicable to other states’ bans, he wrote, it is not a specific order that would end Alabama’s ban.

“[A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings,” he explained.

Moore concluded: “Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.”

Moore stated that he issued the order as the head of the Unified Judicial System of Alabama and under his authority “to correct or alleviate any condition or situation adversely affecting the administration of justice within the state” or take other action “necessary for the orderly administration of justice within the state.”

by Chris Geidner – Buzzfeed.com, January 6, 2016

in In the News / Legal / Legislation / Recently Added  by Anthony Brown 0 comments