On a good day, Queer Northshore would have a dozen people at their twice-monthly peer group meetings. But the meeting following the re-election of Donald Trump had an attendance of over 40. The meetings are meant to be a safe space for any member of the Northshore queer community, and topics of discussion include self-care, boundaries, and dealing with crisis situations. For the queer community, the results of the 2024 election were that crisis moment.
The day following Trump’s victory, the Trevor Project, a suicide prevention and crisis intervention service for LGBTQ+ young people, received a spike in calls. Trump’s re-election led Louisiana trans woman Ruby Porter to abruptly sell her home in order to get bottom surgery, leading to a painful healing process she wasn’t prepared for. Porter added, “It feels like Nazi America is becoming a reality.” According to Jeremy JF Thompson, member of the Louisiana Democratic State Central Committee and co-founder of Queer Northshore, the community had feelings somewhere between “uneasy apprehension to public panic” following Trump’s victory, with fear running high, justified by legislation “both locally and across the country.” They added that the fears of LGBTQ+ individuals range from losing access to hormone replacement therapy and PrEP, to having their children taken away, their identities outright criminalized, and their marriages nullified.
Same-sex marriage is the only one of those concerns that is a constitutionally recognized right, due to the landmark Obergefell v. Hodges decision in 2015. But when speaking to queer people, they fear that right could be in danger of being revoked, and in response, same-sex couples all over the country hurried to get married before the inauguration. And though Trump said very little about same-sex marriage in his campaign, that hasn’t stopped queer people from asking: What would happen if Obergefell were overturned by the U.S. Supreme Court under Trump?
A lesbian woman from Northeast Louisiana was concerned about what the overturning of the decision would mean for her parental rights over her non-biological child she shares with her wife, after attempts to adopt her child were blocked by a judge. One young woman wondered if she should speed up her plans to marry her partner. A gay man expressed concerns over whether or not the government could keep states from providing protections to same-sex couples, adding, “I am trying to stay calm, but this is weighing on me and my family.” One woman echoed the despair many queer people have felt recently, saying: “Why won’t they just leave us alone?”
If Obergefell, which legalized same-sex marriage, is overturned, this would leave us in what queer lawyer Tyler Arbour characterized as “uncharted territory.”
But Nicholas Hite, a lawyer with Lambda Legal, is certain of one thing: “In Louisiana, if Obergefell is overturned, same-sex marriages will immediately become unavailable and unlawful under our state constitution.”
On June 26, 2015, a cascade of rainbow-colored lights splashed against the White House, as same-sex couples hugged and kissed in the streets. Supporters of gay rights waved rainbow flags on the steps of the U.S. Supreme Court, because finally, same-sex marriage was a federally constitutional right. This was due to the Obergefell decision, a consolidation of six cases, which not only included same-sex marriage but also adoption cases. Overnight, the laws in the around 30 states with some form of anti-same-sex marriage language in their codes, statutes, and constitutions were struck down. For many Americans, this was a joyous time—public opinion had grown more accepting, with 2015 polling showing 60% of Americans supporting same-sex marriage.
But the religious right wasn’t happy. Former Arkansas Governor Mike Huckabee called the 5-4 Obergefell decision “disastrous” and “irrational” and compared it to “judicial tyranny.” Louisiana’s former Governor Bobby Jindal compared it to an infringement on Christians’ rights. Their fury tumbled down from the upper echelons of political power and landed in Kentucky’s Rowan County, where on June 27, 2015, County Clerk Kim Davis refused to issue any marriage licenses at all in the name of her religious opposition to gay marriage.
Even after she was sued by the ACLU and ACLU of Kentucky, she still refused to issue licenses. She was found in contempt of court and sentenced to five days in jail, and had to pay more than $360,000 in damages and legal fees.
In July 2024, Liberty Counsel, a conservative legal group, filed a brief to the U.S. 6th Circuit Court of Appeals on Davis’ behalf, intending to use her case as a way to overturn same-sex marriage. Liberty Counsel is an anti-queer hate group (as designated by the Southern Poverty Law Center) and is one of the handful of religious groups going after queer rights under the guise of the “parental rights” movement. The group’s founder and chairman said in a statement to Fox News, “The plaintiffs in [Ermold v. Davis] are part of a larger agenda… intent on punishing people of faith… While it appears [they] have been able to succeed, this case [could] be the undoing of [Obergefell v. Hodges].” Their argument is that Davis was entitled to a “religious accommodation” from issuing marriage licenses under her name and authority.
I asked Nicholas Hite what it was about Davis’ case that makes the religious right think it’s their key to overturning Obergefell. Hite responded, “They want a constitutional right to refuse to do whatever [they want] if it’s against one’s religious beliefs.” The National LGBTQ+ Bar Association paints Liberty Counsel as one of the two most prominent Christian nationalist groups for the last two decades to attack queer rights using the law, alongside Alliance Defending Freedom (ADF). ADF has been a part of the rightward shift of GOP-led state legislatures, and its role in the Dobbs decision helped to overturn Roe v. Wade.
Roe’s reasoning is rooted in a right to privacy, which is a part of “substantive due process,” as found in the Fifth and Fourteenth Amendments to the U.S. Constitution. In a concurring opinion in the Dobbs case that overturned Roe, Justice Clarence Thomas wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [the right to birth control], Lawrence [the right to same-sex intimacy], and Obergefell [the right to same-sex marriage].” In Liberty Counsel’s brief to the 6th Circuit, they mention the Dobbs decision as a legal framework through which Obergefell could be overturned. Justices Thomas and Samuel Alito agree with Liberty Counsel—Obergefell was the wrong decision. In 2020, the two wrote in response to a petition from Kim Davis that the Obergefell ruling infringes on religious liberty and has cast adherents of the Christian worldview as bigots. The 2020 petition by Davis was denied by the justices. Though Justice Alito said in the Dobbs decision that the legal framework used on abortion should apply only to the Dobbs decision and to nothing else, the liberal justices in their dissent warned their colleagues wouldn’t stop at Dobbs. In addition, Alito renewed his criticism of Obergefell in early 2024.
Though Liberty Counsel is trying to overturn the precedent outright, the lawyers I spoke with mentioned that that isn’t an immediate threat. Tyler Arbour estimated it would take years, noting that it took about four years for the Dobbs decision to get handed down. But since Chief Justice John Roberts took the helm in 2005, the court has ruled in favor of religious groups in orally argued cases 83% of the time (up from about 50% in decades prior), which means if Liberty Counsel did get the case in front of the Supreme Court, they would have a decent chance at winning.
As for Trump, he has already stated he’d continue to stack the judiciary with young, right-wing judges and justices, meaning even if Ermold v. Davis isn’t the case that brings down Obergefell, Christian nationalists will have another generation to keep trying.
“Chaos,” “uncertainty,” and “uncharted territory” were words used by the experts from pro-LGBTQ+ groups when I asked them what would happen if Obergefell were overturned. If same-sex marriage was kicked back to the states, once-dormant provisions in 32 states would be enacted, in a fashion similar to the “trigger bans” which were activated after Roe was overturned. This includes both “red” and “blue” states, as even ostensibly LGBTQ-friendly states still have archaic language in their state constitutions or laws that need to be updated. For example, Colorado, a state where 72% of citizens are supportive of same-sex marriage, overturned its 2006 constitutional amendment banning same-sex marriage in 2024. In addition, a representative from Movement Advancement Project (MAP), a nonprofit think tank working to increase equality and opportunity for all, told me that the reversal of Obergefell would create “a patchwork of laws that is confusing, discriminatory, and hard for courts, employers, and others to work within.”
With the return of same-sex marriage to the states, the rights that come with marriage would likely be disbanded too. The Obergefell decision states that same-sex couples have a right to the “constellation of benefits” that come along with marriage. Those benefits typically include, but aren’t limited to: inheritances, division of property, child custody rights, hospital visitation, and more. But, according to Hite, the Obergefell ruling itself never states outright what queer couples have a right to, which leaves plenty of room for interpretation. For example, according to the Louisiana Family Law Firm, in the state of Louisiana, their interpretation limits these benefits to simply getting a marriage license, but doesn’t necessarily apply to the previously mentioned benefits. Overturning of Obergefell could impact someone’s ability to make medical decisions for their partner or one’s ability to stay in their home after their partner dies.
Tyler Arbour posited several scenarios to me: What happens if a partner in a same-sex relationship gets sick and needs to go into a hospital in a state banning same-sex marriage? Would the other partner be allowed visitation? What happens with a same-sex couple traveling from their home state, which allows same-sex marriage, if they have a layover in a state with a ban? Is that marriage now invalidated—thus removing marital rights—while they remain there for their layover?
Though the 2022 Respect for Marriage Act (RFMA, passed in the Senate with all Democrats and 12 Republicans, and in the House with all Democrats and 39 Republicans) applies some cover, the act doesn’t go far enough. The act repeals the Defense of Marriage Act, which was put into law in the 1990s. The act compels states to acknowledge same-sex marriages performed in states where it’s legal. RFMA returned access to more than 1,000 federal benefits, according to Time Magazine, including Social Security survivor benefits. RFMA, however, does not stop businesses from discriminating against queer people—the bill was so watered down by Republicans that leaders of the Mormon faith endorsed it.
In addition, even filing taxes would be more complex. For example: a same-sex married couple who file federal taxes jointly would then have to file state taxes as if they were single. Then there’s the economic barriers to queer couples who can’t afford to get married out of state. The hypotheticals are infinite, but we can see one current example of the weird gray area queer families are stuck in, that could potentially get more uncertain in the event of reversal of Obergefell, by examining the case of Megan Hawthorne Proffer, who sought to adopt her non-biological child. Proffer’s wife gave birth to their child, which led to them seeking out legal protections in order to shore up Proffer’s parental rights.
The adoption has been delayed, though. The couple is waiting to see the results of several appeals cases, where another lesbian couple in a similar situation is appealing the denial of their adoption blocked by Judge Sharon Marchman. The adoption was denied on grounds of Louisiana Civil Code Article 185, which is the “presumption of paternity of husband” code article and which has a language loophole. The Louisiana Civil Code states, “The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage.” The lawyers I spoke with told me the gendered language leaves too much room for interpretation. Hite added that some Louisiana courts will interpret through a gender neutral lens. Proffer made sure to tell me that she does not fault Marchman, and instead blames the language loophole.
In an interview with WWNO, Proffer told a story of going to the doctor with her child, and being listed as a “care provider,” while her wife was listed as the parent. She posed the question, “When am I mom enough?”
The judge’s interpretation of the code has led her to block adoptions for other non-biological parents of same-sex lesbian marriages.
It is unlikely the reversal of Obergefell would have retroactive impacts. Hite told me, “Undoing pre-existing marriages would mean reversing a decade of federal and state tax returns, birth certificates, divorces… [and any] legal transactions that [flow from] marital status.”
Lawyers I spoke to said couples planning to get married should prioritize legal documents above all else. If you are concerned, skip the lavish wedding and focus on getting a marriage license. In addition, couples need to protect themselves by securing powers of attorney, wills, medical directives, and securing parentage for children through confirmatory adoptions. The National Center for Lesbian Rights states that all non-biological parents should get a “court judgment recognizing that they are a legal parent, even if they are married and even if they are listed as a parent on their child’s birth certificate.” Having your name on the child’s birth certificate does not guarantee protection if legal parentage is challenged in court, like in the aftermath of a divorce or breakup. This is also very important if you used a known sperm donor, as in the event the biological mother in the same-sex marriage dies, the donor may have legal claim to the child moreso than the non-biological parent.
Hite added: “For most same sex couples, protecting children, income, and caretaking are the three biggest concerns. To protect children, couples should consider a second-parent adoption or uncontested joint custody judgment. To protect income, couples should consider the tax implications of being forced to file separately rather than jointly at a state level and should ensure they have legal paperwork granting access to each other’s finances. To protect caretaking, couples should consider putting an estate plan in place. That can include a will, but can also include documents ensuring the spouses have the ability to make financial and medical decisions for each other during illness, incapacity, and in the event of death.”
Two things would need to happen for same-sex marriage to be banned outright: first, the overturning of Obergefell; second, the repealing of the Respect for Marriage Act, which would be hard. Queer people have gained more visibility and public opinion has become more sympathetic, increasing the chances of backlash from voters. However, the representative for MAP told me that we could instead see efforts to undermine same-sex marriage by “providing exemptions to employers who don’t want to offer benefits to spouses, hospitals who don’t want to allow medical decision-making or visitation, and everyday businesses who want to turn away same-sex couples.”
Nicholas Hite added, “We expect to see a license to discriminate become a part of key federal programs… this could include not only same-sex couples but interfaith couples, couples of minority faiths, unmarried couples, and even interracial couples.”
While Liberty Counsel is working to have Obergefell overturned outright, Alliance Defending Freedom has been trying to chip away at LGBTQ+ protections. ADF took up multiple similar cases in 2016 in response to Obergefell: the Masterpiece Cakeshop case, which reached SCOTUS but didn’t shake out the way they wanted; a case with a florist and photographer, which died in lower courts; and most recently, the 303 Creative gay wedding website case, which was manufactured by Christian nationalist lawyers, as the business owner was never approached by a gay couple. All cases dealt with the withholding of services from queer people. In the latter case, the plaintiff revamped her entire brand just to be used as a “First Amendment” test case. SCOTUS ruled in her favor.
When asking Hite what LGBTQ+ allies can do, he invoked the iconic slogan from the AIDS crisis: “Silence equals death. Allies shouldn’t speak instead of the queer community, but they should join the chorus in support of queer voices.”
The representative from MAP added, “Millions of Americans know and care about LGBTQ people in their families and in their communities. We must all work together to stand up against efforts to permit discrimination, restrict health care, and to roll back vital protections like marriage equality. This means telling our elected officials that we want them to focus on the real challenges in front of us.”
Jeremy JF Thompson believes we are on the road to fascism and “social cleansing,” and urges those who do not see that to look closer, and “to speak with those in the LGBTQ+ community who can no longer depend on the soon-to-be-erased, fledgling progressive policies that had only barely begun to take root over the last few decades.”
During the 2024 election cycle, California, Colorado, and Hawaii amended their constitutions to get ahead of any future attempts by the anti-queer crusaders to suppress same-sex marriage, something the GOP had mostly been quiet about, until early January, when the Idaho Republican Party called on the Supreme Court to overturn the precedent, showing the Obergefell decision is something on the GOP’s mind. And as GOP-held legislatures have shown a willingness to move in lock-step in the past, everyone should keep an eye on what happens next.
Additional Resources
LGBTQ+ end of life planning
wake.education/lgbtqeolguide
Protecting your LGBTQ+ Marriage and Family guide (NLCR)
nclrights.org/get-help/resources
Trevor Project LGBTQ+ Suicide Hotline
thetrevorproject.org
Top photo: The Gay Men’s Chorus of Washington performs on the steps of the Supreme Court building in Washington, DC to celebrate the Obergefell v Hodges verdict on June 26, 2015. (photo by Angela Calonder)
