What Trump Means for Your Same-Sex Marriage

The shock has worn off, and most have come to accept Donald Trump will be the next President of the United States. But now that reality has set in, what can you expect? What does a Trump presidency mean for your same-sex marriage.

In the week after the 2016 election, I received more calls for second-parent adoptions from LGBT couples than I had in the rest of the year combined. Why? Because gay and lesbian Americans are scared. They believe that the election of Donald Trump could set marriage equality back decades. And that fear is deeply personal because it could affect their rights as spouses and parents.

What Donald Trump Has Said About Gay Marriage

Donald Trump said a lot of things on the campaign trail. He offended a lot of people, including the LGBT community. He generally has been “for traditional marriage” and his running mate, Mike Pence certainly is opposed to the Obergefell decision. However, in an interview with 60 Minutes shortly after he was elected, Trump called the issue of same-sex marriage “settled”.

“You have these cases that have already gone to the Supreme Court. They’ve been settled, and I’m fine with that,” Trump said.

As with many things said on the campaign trail, it appears Trump may not be as staunchly opposed to marriage equality as it originally seemed.

What About the Supreme Court?

While Trump personally may see the issue of same-sex marriage as settled, many conservatives disagree. Because the Senate has refused to confirm the nominee selected by President Obama to replace Justice Anton Scalia, Donald Trump will be appointing at least one Supreme Court Justice. He has promised to choose a conservative “pro-life” candidate. In most cases, “pro-life” means “anti-LGBT.” So it is likely the judicial candidate selected will be opposed to Obergefell.

But so was Justice Scalia. In his dissent of the case, he wrote:

“Today’s decree says that my Ruler and the Rule of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. . . . This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
So Trump will simply be replacing one conservative justice with another. No significant change will come to the make up of the Supreme Court unless or until one of the more liberal justices leaves the court.
Even if the make of the court should swing conservative, that doesn’t necessarily mean Obergefell will be overturned. Judges, particularly conservative Supreme Court justices, apply a rule called “stare decisis”, which translates as “to stand by things decided.” It means that generally speaking, the court won’t generally overrule decisions already made. When existing decisions are overturned, it is generally after a significant period of time and usually a nationwide cultural shift. So even a conservative court may not decide to strike down marriage equality.
Finally, in a worst case scenario, there are many steps before an active conservative Supreme Court could vacate Obergefell:
  • A state or federal legislature must create or enforce a law contrary to marriage equality.
  • A same-sex couple needs to sue to strike down the law.
  • The case needs to go through state or federal district and appeals courts.
  • The Supreme Court must grant leave to appeal (certiorari).
  • 5 Justices must agree that the new law has a rational basis to protect a legitimate government interest.

Even if the process starts January 21, 2017, it will be years before Obergefell falls, during which time same-sex marriages will be performed and LGBT families will be safe.

Lower Court Judges Could Limit Same-Sex Rights

While Obergefell is not going anywhere any time soon, there are over 100 vacant seats across the lower federal courts. With a conservative legislature, Donald Trump will likely be able to fill all of those positions with judges who aren’t likely to be strong advocates for marriage equality.

A lower court judge may not make a ruling contrary to a Supreme Court decision, but they can “distinguish” cases, saying that the law before them is somehow different than the state laws struck down by Obergefell. Legislators can be crafty in finding ways to write laws that are just different enough to be distinguishable. So while Obergefell will remain the law of the land, same-sex couples and their families may face challenges in the lower courts when it comes to parenting, adoption, and other laws connected to, but not directly affecting marriage.

No one knows exactly what Donald Trump will do once he is sworn in as president. But one thing is certain: whatever changes are coming will take time to work through the courts. There is no need to panic. Instead, it is time to prepare, organize, and advocate for the protection of same-sex marriage and LGBT rights at all levels of the court.

Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She focuses on LGBT family issues in the Metro Detroit area. If you are facing a difficult family situation, contact Schmidt & Long today for a free initial consultation.