How Obergefell v Hodges Has Affected LGBT Family Law

Photo by Matt Popovich

In 2015, the landmark case Obergefell v Hodges legalized gay marriage nationwide. At first glance, the concept of marriage equality seems remarkably simple. Upon closer inspection, however, it is clear that this transition involves highly complex networks of laws related to marriage at both the state and the federal level. In this post, we’ll take a quick look at a few examples of how the legalization of gay marriage has affected LGBT family law.

Transition from domestic partnership and civil union

Before gay marriage was legalized nationwide, LGBT couples faced a patchwork of constantly changing legislation that dictated their limited options to legalize their relationship. Some states had options such as domestic partnerships or civil unions. However, unlike marriage, these relationships did not hold federal rights, nor were they guaranteed to be recognized in other states or internationally. Some states, like California, had already legalized gay marriage, and also retained domestic partnerships. Still others had virtually no relationship rights for same-sex couples.

After Obergefell v Hodges, everything changed. A handful of states, including Washington and Connecticut, opted to automatically transfer civil unions and domestic partnerships into marriages in most cases. In California, it was a different story. Instead of an automatic transfer, couples could decide for themselves whether they wished to remain domestic partners, or become married, or both. While most couples today choose marriage, as it comes with the strongest legal rights and protections, some still opt for domestic partnership. A key part of the reasoning for this is the fact that marriage licenses are public, while domestic partnerships are not. Therefore, a couple may determine that for safety or perhaps a family’s religious reasons, they wish the status of their relationship to be private.

Impact on parental rights

While LGBT couples in California had enjoyed relatively strong parental rights, the same could not be said in many other states. While those rights are still not completely set in stone, Obergefell v Hodges certainly helped strengthen LGBT families’ rights in adoption and surrogacy, as well as during custody and visitation disputes. For example, earlier this year the U.S. Supreme court confirmed that a custody dispute for a lesbian couple with children must be treated in the same manner as a heterosexual couple. This emphasized that discrimination against married LGBT couples will not be tolerated.

Impact on health care rights

In the United States, certain health care benefits can only be gained if a couple marries. After Obergefell vs Hodges, those rights are now available to LGBT couples. This is true for federal rights (such as veterans benefits), state rights (such as state-funded health care) and for health insurance provided through employers. When it comes to transgender individuals, however, health care rights are still undetermined, and the current administration has demonstrated potential intent to uplift “religious freedom” rights, which often directly contradict LGBT rights. For example, in January of this year, a new department, called the “Conscience and Religious Freedom Division” was created in the Department of Health and Human Services.

In total, Obergefell v Hodges has had an overwhelmingly positive impact on LGBT family law. Yet like with any progress, some pushback is to be expected. Our team of LGBT family law attorneys are proud to have served the local Los Angeles gay community throughout these legal changes. Do you think you may benefit from an attorney with our specialized expertise? Give us a call at (855) LAW-LGBT to schedule a free, no-commitment consultation to discover if we are the right fit for your legal needs.