Protecting Same-Sex Marriage After Dobbs

By Rebecca Melnitsky

April 19, 2023

Protecting Same-Sex Marriage After Dobbs


By Rebecca Melnitsky

After Dobbs v. Jackson Women’s Health Organization took away the constitutional right to abortion, could same-sex marriage be next?

When the Dobbs decision was released last year, the majority opinion said it was because abortion is not specifically named in the constitution nor “deeply rooted” in the history of the United States. On that day, Associate Justice Clarence Thomas released a concurrent opinion saying that Obergefell v. Hodges, which legalized same-sex marriage nationwide, could be overturned on similar grounds.

Justice Thomas also said the rights to birth control (Griswold v. Connecticut) and private, consensual sex acts (Lawrence v. Texas) could be challenged as well.

The future of marriage equality under these circumstances was the subject of a recent Continuing Legal Education course. It was hosted by the LGBTQ Law Section, the Elder Law & Special Needs Section, and the Trusts & Estates Section of the New York State Bar Association.

Volunteers of Legal Service and SAGE, an advocacy and services group for LGBTQ+ elders, sponsored the program.

On December 13, 2022, the Respect for Marriage Act was signed into law, stating that the federal government would continue to recognize same-sex and interracial marriages no matter what the court decides in the future. “Almost like a reverse [Defense of Marriage Act],” said Aaron Tax, managing director of government affairs and policy advocacy at SAGE.

On the state level, the Alabama Attorney General’s office used the Dobbs rationale to argue for banning gender affirming medical treatment for transgender youth. The president of the Utah State Senate said he would support the Supreme Court revisiting same-sex marriage.

“These words matter,” said Tax. “The lower courts are looking at them and sometimes trying to use them.” He speculated that recent cases, such as 303 Creative LLC v. Elenis, in which a website designer said she would not create wedding websites for same-sex couples, could also be used to chip away at LGBTQ+ rights and protections.

The Benefits of Marriage

“My whole professional career is divided between what we used to do before we had marriage equality,” said Thomas Sciacca, a trusts and estates attorney. “And what we started doing after.”

Sciacca explained that without a legally recognized marriage, the surviving partner of a same-sex couple would be unable to inherit benefits, challenge a fraudulent will, automatically receive bereavement leave, determine if their partner is buried or cremated, receive wrongful death proceeds, keep custody of children and more.

“We needed to be aware of what the consequences of not recognizing a relationship are,” said Sciacca. “What specifically are the rights that are lost.”

A surviving partner would also not get the martial tax exemption on property and assets.

“If you have a situation where you have have an unmarried couple that’s treated separately… the presumption is that the first person to die contributed 100 percent of the consideration to acquire the asset,” said Sciacca. “And therefore 100 percent of it should be taxed in the estate of the first person to die. And this was a complete disaster.”

He had one case where two men who were together for 45 years had purchased a brownstone for $40,000. When one partner died, the property was worth over $4 million. The IRS wanted to tax the property in the deceased’s name even though it was jointly owned.

Luckily, the surviving partner found the original deed from 1968 that had both his and his partner’s names on it and proved that they had both paid for the brownstone.

“This is not something that a couple who is able to get married, or have their marriage recognized, would ever face,” said Sciacca. “Unfortunately a lot of times in situations like this, the surviving spouse is faced with this awful decision” to either pay expensive penalties to continue to live in their home, or to move out.

The Right To Make Medical Decisions

Same-sex couples also should consider the protections if they travel to areas hostile to LGBTQ+ rights.

“I am not taking anything for granted,” said Sciacca. “Not only for my clients but also for myself.” When traveling, he brings a health care proxy document that authorizes his husband to make medical decisions in case local authorities do not recognize his marriage.

The CLE is available on demand.

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