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When the Supreme Court overturned Roe v. Wade and 50 years of precedent on abortion rights, Justice Thomas suggested the court should also reconsider other cases like the decision that legalized same-sex marriage nationwide. This spurred the U.S. House to vote Tuesday on protecting marriage equality, while some same-sex couples are turning to lawyers with concerns. John Yang reports.
When the U.S. Supreme Court issued its opinion last month overturning Roe v. Wade and 50 years of precedent on abortion rights, Justice Clarence Thomas suggested that the court should also reconsider other cases, like Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage nationwide.
Yesterday, the U.S. House of Representatives voted to protect marriage equality if the justices reverse course.
But, as John Yang reports, Justice Thomas already has set off alarm bells in the LGBTQ community.
Judy, we asked married gay, lesbian and transgender viewers about their concerns. Here's some of what they told us.
Robbin Reed, Minnesota:
My name is Robbin Reed. I live in Minneapolis. I am in an interracial queer relationship. We're married. We just had a baby.
Derek Mize, Georgia:
My name is Derek Mize, and I live in Atlanta, Georgia.
Jonathan Craig, Georgia:
I'm Jonathan Craig, and I live with him in Atlanta, Georgia.
Katie Miller, Nevada:
My name is Katie Miller. And this is my wife, Mikyla Miller.
Mikyla Miller, Nevada:
We have been married since 2008, when it became legal in California, actually, within days of it becoming legalized, if not on the date, actually.
Theresa Volpe, Illinois:
My name is Theresa Volpe.
Mercedes Santos, Illinois:
And I'm Mercedes Santos.
We have been a couple for 30 years, and we have been legally married since 2014. We're from Evanston, Illinois.
Dawn Betts-Green, Alabama:
I'm Dawn Betts-Green. I live in Birmingham, Alabama, now. I have been in a relationship with my wife since 1997.
Particularly because we live in the South in a state that is probably on that list of states that would like to take measures into its own hands if the Supreme Court allowed it, and also because we have children, and it puts our family in a pretty precarious position.
So I would say our reaction was one of worry. We're trying not to worry too much. We're trying to be helpful. But, yes, it's now in the back of our mind sort of that we need to have contingency plans in place.
I don't know what that means for health care, but it worries me that our family would essentially be unrecognized in states.
It's terrifying, right? Like, there is a very real possibility that if abortion can be overturned, interracial marriage can be overturned.
Protection for us has really been about planning our estates, right, making sure that we have guardianship laid out for our son.
I always tell the story, when I was still in school and Tallahassee, probably about 2008-2009, we both had pneumonia. I got out of the hospital, and then she had to go to the emergency room.
And we're sitting in the emergency room talking to a nurse, and she's going to have — my wife's going to have to go into intermediate care, because she was pretty bad off at that point. And she said, who can make decisions for you? And my wife, of course, looks at me and says, Dawn.
And the woman looks at us and says, no, someone who can actually make decisions.
And then we got married legally on our anniversary in 2016. And it has been much less anxiety-ridden. It's not hard to imagine that the 2008-2009 situation in the hospital happening yet again.
We have got a family binder that has our marriage certificates, our children's birth certificates, our domestic partner certificates, all that, that paperwork that we still have to carry around because we feel like we might at some point in need to verify or justify our relationship.
To do that is exhausting and is unfair. Those are questions that we wouldn't have asked until this ruling came out, because we had kind of felt, I would just say, more comfortable, right? And, suddenly, it feels like we're on shaky ground again.
Right now, marriage is legal, and it's at the federal level. And I don't want to have a conversation with my 8-year-old, who doesn't know anything else. He has only saw us as a married couple.
And I don't want to have to go back to them or anybody else who I am friends with who is in an LGBTQ relationship, who are married and say, oh, you know what, we're doing this again. We — although we were very proud to go and speak out and help with this fight, I'm exhausted.
Many couples are turning to lawyers with their concerns, lawyers like Sydney Duncan of the Magic City Legal Center, which provides free legal advice to the LGBTQ community in Birmingham, Alabama.
Sydney Duncan, thanks for being with us.
Since the court overturned Roe, have you been having more people come to you with concerns like this?
Sydney Duncan, Attorney, Magic City Legal Center:
Yes, I think there's a general anxiety that was absolutely prevalent in that piece that you just ran in the queer community about where they stand in America today, especially if they're in a red state. We're overwhelmed right now with questions.
We had a state clinic just two nights ago, and it was our biggest we have ever had. And those couples who are coming in, they're already married. They typically have children. And what we're doing is basically reverting to pre-2015 Obergefell law practice, and providing them with some sort of legal basis outside of their marriage that reflects the legal standing of their marriage.
And we're doing that with wills and estates, estate planning documents, such as power of attorneys and advanced health care directives. So, yes, people are very, very concerned right now.
And we talk about that.
It's not just the right to marry, but it's all the rights that come with marriage that were sort of — that the Supreme Court said was constitutional in 2015. So talk about all the sorts of things that, pre-Obergefell, the decision, people had to do, same-sex couples had to do, and might have to do again.
Sure. So, adopting your own child is something that stands out and has been a popular source of inquiry right now in our legal — legal practice.
People who have been married for a long time have children who are older who don't know their parents by anything other than them being their parents are now wanting to adopt their own children, if one of them is not the biological parent on the birth certificate.
So the rights and privileges that exist in marriage extends now to same-sex couples. That was what Obergefell did. And that includes, like, having both parents on the birth certificate, for instance.
And that has been challenged recently in Indiana in 2020. The attorney general tried to make illegal or not validate having same-sex couples on birth certificates. And the Supreme Court did turn that away. So there's some hope that that would happen again.
But with Clarence Thomas issuing basically political agendas through his concurring decisions that target queer people across America, it — there's nothing else to do but to feel worry and concern over that.
How worried are you that that could happen in the Supreme Court?
You know, I am — it's hard to say, right?
I think, if you ask any attorney these days where they stand on precedent, they're going to give you a shakier answer than they would have prior to Dobbs. I'm not very concerned. I do think that Obergefell sits on firmer ground than Roe did. And I think there are advantages in the equal protection argument that is in that case that Roe did not have.
So it is politically popular, though, right now. And I think there seems to be a skew between political want and judicial action right now in the Supreme Court. And that's concerning to me. So I'm not worried, but I'm also assisting my clients if they want to take these extra steps that they may not need to do ultimately.
So we're being prepared, I guess, is a better way to say it.
I think we heard one of the couples in our tape piece talk about making contingency plans.
Is that sort of the approach you're taking now with your clients?
And there's plenty of leeway — leeway that would happen. If the Supreme Court were to take on a case like this, we would have plenty of time to kind of get everyone's affairs in orders that needed to do this. But I think people are doing it as a way to sort of feel better about the anxiety that they're feeling right now with respect to what happened with Dobbs and what it possibly could mean for Obergefell.
So, it may be a bit of a sort of self-soothing course of action for people, but it is better to be prepared than to be surprised, I think, in these matters.
And this — if they did do this, if they did overturn Obergefell, this would upend the lives of millions of Americans.
I can't imagine.
What we would end up with, I think, is two very different American experiences, right? You would have a blue state experience and a red state experience. And those would be so different from each other. And I worry about that. I think, right now, we're sort of politically being driven in that direction.
But if the law reinforces these political ideologies and enforces them on people who don't want them, then we're in danger of becoming two very different countries legally.
Attorney Sydney Duncan from Birmingham, Alabama, thank you very much.
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John Yang is a correspondent for the PBS NewsHour. He covered the first year of the Trump administration and is currently reporting on major national issues from Washington, DC, and across the country.
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