How Can I Protect My Maryland LGBTQ+ Marriage in the Wake of the Election?

After President-Elect Donald Trump won the election, some of our LGBTQ+ clients expressed concerns about their rights. Will marriage equality be overturned? Will I lose custody of my child? What will happen to my family if my partner gets sick or dies? These are valid questions.

Today, we’ll address some of these concerns and provide advice on protecting yourself and your family.

Before we jump in, let’s take a quick look at the foundation of legal same-sex marriage in Maryland and across the country.

Obergefell v. Hodges

In 2015, the U.S. Supreme Court issued a landmark decision in Obergefell vs. Hodges. The case led to the legalization of same-sex marriage nationwide. This ruling was a huge victory for LGBTQ+ couples, ensuring the protection of marriage equality under the U.S. Constitution. The Court held that denying same-sex couples the right to marry was a violation of the 14^th Amendment, which guarantees equal protection and due process.

The New York Times reports:

Since Obergefell established gay marriage as a constitutional right, protected by the 14th Amendment’s due process clause, the ruling cannot be overturned by Congress or an executive action. (Four justices would need to agree to hear a case to reconsider the ruling, and then five justices would need to agree to overturn it.)

This means that same-sex marriages must be recognized in all 50 states, including Maryland. But while Obergefell is still the law, recent changes in the Supreme Court and shifting political priorities have left many people wondering if marriage equality could be at risk.

The good news is Maryland has historically been a leader in protecting LGBTQ+ rights. In fact, our state recognized same-sex marriage even before the Obergefell decision.

The Civil Marriage Protection Act

In 2012, Maryland voters approved the Civil Marriage Protection Act – making Maryland one of the first states to legalize same-sex marriage through a popular vote. This law provides that all married couples, regardless of gender, have the same rights, benefits, and responsibilities.

Maryland’s law remains in effect today. As a result, LGBTQ+ marriages in the state benefit from an extra layer of protection. Even if federal protections were weakened or overturned – which we’re hoping won’t happen – Maryland’s state laws would still recognize and protect your marriage.

What happens after the election?

Feeling anxious about how political changes might affect your marriage is natural. Some political candidates and policymakers have expressed their opposition to marriage equality, and there have even been calls to revisit Supreme Court decisions like Obergefell v. Hodges.

We obviously can’t predict the future, but here are a few potential scenarios:

• Scenario 1: Federal protections remain intact. This is the best-case scenario, where Obergefell and other LGBTQ+ rights cases remain untouched. This means that marriage equality continues to be protected nationwide.
• Scenario 2: Federal protections are weakened. If the Supreme Court does revisit Obergefell and weakens federal protections, then the states regain more control over marriage laws. If this happens, Maryland’s Civil Marriage Protection Act will still protect same-sex marriages within the state.
• Scenario 3: Federal protections are overturned. In the unlikely event that Obergefell is overturned, same-sex marriages might face challenges in states without protections. However, Maryland’s existing laws would continue to recognize and protect LGBTQ+ marriages within the state.

How can I protect my marriage and family?

It’s reassuring to know that Maryland law supports your marriage. However, it’s always a good idea to take proactive steps to protect your marriage and family. Take the following into consideration.

Create an estate plan

Estate planning is crucial for all couples, but it’s even more important for LGBTQ+ couples who may face legal uncertainties. An estate plan can help ensure your wishes are respected if something happens to you. For example:

• Draft a will clearly outlining how you want your assets to be distributed.
• Establish a power of attorney, designating someone to make financial and medical decisions on your behalf if you become incapacitated.
• Set up a healthcare directive, specifying your medical wishes and designate a trusted person to make healthcare decisions for you.

Adopt your children

If you and your spouse have children, you must establish legal parentage for both parents. Even though Maryland recognizes the parental rights of married same-sex couples, a formal adoption can provide an extra layer of security. You may consider second-parent adoption, which allows a non-biological parent to adopt their spouse’s child, ensuring that both parents have equal legal rights.

Review your legal documents

Take the time to review and update any important legal documents:

• Make sure both spouses are on the deeds and listed as co-owners of any property.
• Update your beneficiaries on life insurance policies, retirement accounts, and other financial assets.
• Consider creating or updating pre- or post-nuptial agreements that outline how assets will be divided in case of divorce.

Know your parental rights

Maryland does have laws that protect LGBTQ+ parents, but you should understand your rights and take extra steps to safeguard them.

• In Maryland, a child born to a married couple is presumed to be the legal child of both spouses. This is called Presumption of Parentage. However, formalizing this relationship through adoption can help prevent future legal challenges.
• If you’re co-parenting with someone outside your marriage, a written parental agreement can clarify each parent’s rights and responsibilities.

What steps can I take to protect my gender identity?

Maryland is a progressive state that explicitly prohibits discrimination based on gender identity in employment, housing, and public accommodations, specifically under the Maryland Fair Employment Practices Act and the Fair Housing Act. This means that you and your spouse are entitled to equal treatment under the law.

If you or your spouse need to update legal documents to align with your gender identity, you can change your name and gender marker on official documents like driver’s licenses and birth certificates. You can choose “M” (male), “F” (female), or “X” (non-binary) as your gender marker.

Remember to also revisit your estate planning documents, insurance policies and parenting records to ensure they reflect your correct name and gender. Taking the time to make these updates can prevent future legal complications and affirm your identity in emergency situations.

Are you concerned about protecting your marriage, legal rights, or gender identity in Maryland? Reach out to the knowledgeable Fulton family law attorneys at McCabe Russell. We understand the unique challenges facing LGBTQ+ families. Let us help you update important legal documents, secure your parental rights, and ensure the protection of your family and identity. Schedule your no-obligation consultation with a member of our legal team by calling our office or reaching out to us through our contact form. We also maintain offices in Bethesda, Columbia, and Rockville.