Since the Supreme Court overturned Roe v. Wade in Dobbs this summer, many people have been concerned about other critical decisions facing similar attacks. In particular, LGBTQ+ people around the country fear that Obergefell v. Hodges, the decision that made same-sex marriage legal nationwide, may be reversed if a challenge should reach the current Supreme Court.
While this is a concerning thought, California residents will be better off than many others. California has protected same-sex marriage in several ways, making it more difficult for a Supreme Court decision to affect marriages at the state level. Here’s what you need to know about why people may fear for the nationwide recognition of same-sex marriages, how California is protecting the right locally, and what you can do to protect yourself if the Supreme Court does reverse Obergefell.
Why Same-Sex Marriage Nationwide May Be At Risk
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was based on the idea that Roe was unconstitutional. According to the ruling, the Court’s decision in Roe was “an abuse of judicial authority,” and the fundamental reasoning behind it was “egregiously wrong.”
The Court’s original decision in Roe relied on the 14th Amendment, which grants people the right to privacy. The Court decided that this right allowed people to do what they wanted with their own bodies and that banning abortion violated this right. However, the current Supreme Court disagreed with this interpretation.
In regards to same-sex marriage, this decision poses a problem. Many other cases relied on Roe as a critical precedent for privacy. In a concurring opinion for the decision, Justice Clarence Thomas wrote: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” He also stated that they were “demonstrably erroneous decisions.” These decisions are some of the most important in recent history:
- Griswold v. Connecticut: Guaranteed the rights of married couples to obtain contraceptives
- Lawrence v. Texas: Guaranteed the rights of all adults to perform private sexual acts
- Obergefell v. Hodges: Guaranteed the right to same-sex marriage
Justice Thomas believes all of these cases should be reconsidered and potentially overturned due to their reliance on Roe and interpretation of the 14th Amendment. Many LGBTQ+ rights advocates are now deeply concerned that the right to gay marriage nationwide will be overturned unless new legislation is passed.
California’s Laws on Same-Sex Marriage
California residents will not have as much to fear from a potential overturning of Obergefell as residents of other states. Same-sex marriage was first made legal in California in 2008, and after a rocky legal history, it has remained consistently legal since 2013.
Initially, same-sex marriage became legal on June 16, 2008, due to the Supreme Court of California’s decision In re Marriage Cases. However, on November 5, 2008, Proposition 8 passed, making same-sex marriages illegal again. Proposition 8 was declared unconstitutional on June 27,2013, when the U.S. Supreme Court declined to hear an appeal on Proposition 8. This left the Ninth Circuit Court’s decision standing. As such, Proposition 8 was considered unconstitutional as it explicitly restricted the right of some people to marry.
However, California didn’t rest on its laurels and rely on judicial rulings to protect marriages. The state passed Senate Bill 1306 in 2014, which explicitly updated the definition of marriage to remove gendered terms entirely. It was followed by SB 1005 in 2017, which replaced all references to “husband” or “wife” in California laws with “spouse” instead. In short, same-sex marriage is specifically permitted under California law.
Protecting Yourself from Potential Legal Changes to Your Marriage
While your relationship is unlikely to be affected in California, any federal changes to same-sex marriage laws could still affect you if you leave the state. It’s always best to be prepared, so now is the time to ensure that the essential elements of your marriage are protected. You can use the following three strategies to ensure that you and your spouse remain a legal unit no matter what happens on a federal level.
1. Give Your Spouse Power of Attorney
A Power of Attorney (POA) document lets you grant someone the right to manage your legal, medical, and financial affairs. With a POA, you can ensure that if you cannot make your own decisions, your spouse will have the right to make them for you. Usually, this right is automatically granted to spouses, but having a POA on hand will ensure that federal changes don’t cause problems should something happen to you.
2. Name Your Spouse in Your Will
If there is no will in place, your assets and property will typically be awarded to your spouse should you pass away. However, if the status of your relationship is in question, this may not be the case. Naming your spouse in your will clarifies the situation and ensures your estate won’t be at risk if Obergefell is overturned. You can also use postnuptial contracts to clarify these details further.
3. Add Your Spouse as a Beneficiary
Similarly, if you have any life insurance policies, retirement accounts, or trusts in place, ensure that your spouse is named as a beneficiary. Vague language can cause problems if there’s any legal confusion regarding your marital status. It’s better to be safe by naming your spouse as a beneficiary to reduce potential complications.
Protect Your Marriage in a Complicated Legal Landscape
While there’s no immediate threat to same-sex marriage, the Dobbs decision puts Obergefell and other critical Supreme Court decisions in flux. Even as a California resident, it’s smart to protect yourself and your relationship from potential legal complications by finding ways to reinforce your marital rights.
If you have any concerns about your marriage, you can also consider writing a postnuptial agreement with your spouse. You can learn more about the benefits of postnuptial agreements by reaching out to the experts at Kaspar & Lugay, LLP. Get in touch today to discuss your situation and learn how our qualified family law attorneys can help you write a postnuptial agreement and protect your assets no matter what happens on a federal level.