On November 8, 2016—Election Day—I volunteered at a polling place in Madison as a Voter Protection attorney. We dealt with a fire alarm, an injunction, the media, the new voter ID law, an aggressive poll monitor from the Republican Party, and full-on attempted voter suppression. It was exhausting. And that was before I heard the election results. When I did, I decided to take the next day off work, went to yoga, quieted my mind, and raked my yard. I turned off my phone. That Wednesday had such a strange and somber feel to it.
When I got into my office on Thursday morning, it was chaos. We were overwhelmed with panicked emails and voice messages. Everyone was frantic to know what a Trump administration will mean for their family and what they can be doing to protect themselves right this moment and before inauguration in January. I was a bit shocked at the chaos.
Complacency had been slowly building in my clients since 2014 and 2015 (after the marriage equality cases, Wolf v. Walker and Obergefell v. Hodges). Over the last year or so, we have had several clients opt to do nothing more than marry to protect their families. They did not feel court orders or layered estate plans were necessary anymore. But that complacency and optimism had burst and was now gone, in just one day of raking. I was surprised and so sad to hear how quickly the optimism of marriage equality could turn back to fear. And there was real fear in people’s voices.
What Could Happen?
The first thing you can do to prepare for the Trump presidency is to arm yourself with knowledge. Understand the probabilities of what could happen. This might help to manage your fear and anxiety of what is to come. Weeks later, my Facebook feed is still all doomsday scenarios. Yes, they make me anxious, but my anxiety is tempered by my knowledge of the law. I stop my emotional mind and think: What can he actually do? What is legally and politically realistic, and what is just rhetoric aimed at voters who don’t know better? I think the LGBT community might take comfort in some of the details.
1. Couples do not need to rush to marry before January.
President-elect Trump cannot easily “overturn” marriage equality. It is next to impossible, in fact. Obergefell v. Hodges is a U.S. Supreme Court case based on federal constitutional principles. That means there are only two ways to overturn it: by federal constitutional amendment; or by another U.S. Supreme Court case. It cannot be overturned by federal or state legislation or executive action (like a memo or regulation issued by the Trump administration).
The federal constitutional amendment possibility is so unlikely it barely merits discussion. To pass a constitutional amendment, Congress must pass it by a two-thirds majority vote in both the House and the Senate. Then the amendment must be sent to all 50 governors of the States. To pass, the amendment must be voted on and ratified by three-fourths of the States (38 of 50). The last amendment to pass was the 27th, which provides that if Congress votes upon its own compensation, the new compensation cannot take effect until the next session. That amendment was proposed in 1789 and it passed in 1992. Before that, the 26th amendment gave 18-year-olds the right to vote in 1972. Amendments are rare and very hard to pass, intentionally so.
The path to overturn marriage equality by another U.S. Supreme Court case is almost as unlikely, and it would also take a very long time. President-elect Trump would have to replace at least two justices, find a case, work it through the lower courts, and then overcome the long-established principle of law called stare decisis. That’s Latin for “to stand by things decided.” According to Black’s Law Dictionary, it is “the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.” Sure, there are examples of the U.S. Supreme Court overturning its own precedent—for example, Lawrence v. Texas in 2003 overturned Bowers v. Hardwick from 1986, finding that anti-sodomy laws are unconstitutional—but those examples are usually to vindicate obvious principles of law and remedy continued injustice.
It is highly improbable that President-elect Trump would be able to overcome these legal and political hurdles, to turn back the clock on marriage equality. Couples, therefore, do not need to rush to marry before January. The fundamental right to marry for all is not going anywhere, much less anytime soon. Any other assertion is uneducated rhetoric.
2. Married couples should not worry that their marriages will be invalidated.
First, marriage equality would have to be overturned (see above). Second, that overturning of marriage equality would have to be applied retroactively, and precedent is strong that if a marriage is valid when entered, it will remain valid and must be recognized and respected despite future changes in the law. This is the principle of law that created that window of valid marriages in California in 2008 before Proposition 8 passed. Threats that your marriages will be invalidated are, therefore, hollow and uninformed: in other words, again, silly rhetoric.
3. Under the same principles, parents should not worry that their adoptions and parentage orders might be invalidated.
These are state court orders, concerning state laws. President-elect Trump, in his federal position, has very little access to affect such state issues. The new administration cannot undo the recent birth certificate decision in Wisconsin (Torres v. Seemeyer) or affect our parentage or step-parent adoption laws. On the other hand, I do fear that a parentage equality case could make its way up to the U.S. Supreme Court, after President-elect Trump has been able to skew the composition even further to the right. And no precedent has been established at this level on the parentage issue, so the Court would not have its hands tied, as it does with marriage equality. As most know, Supreme Court appointments are a real threat to the continued evolution of civil rights. This one is not hollow or silly.
4. By far, my biggest and most realistic fear I have is what the Trump administration will do to the implementation of marriage equality at the federal agency level.
Having practiced LGBT law for the last 11 years, I have watched with admiration and a bit of cynical surprise at how quickly and smoothly President Obama implemented marriage equality. Besides steering our economy, conducting our foreign affairs, and protecting our country, the U.S. President is the CEO of an entire branch of government: the Executive Branch, a vast bureaucracy made up of the Department of Homeland Security, the State Department, the Department of Justice, the IRS, U.S. Citizenship and Immigration Services, the Social Security Administration, Health and Human Services, etc. And this authority is unilateral. The President gets to write memos that are binding on all these agencies. That is how President Obama implemented marriage equality so quickly and fairly. He didn’t have to answer to anyone. That is also how President-elect Trump will be able to undo all of it, on day one, with one stroke of his pen.
A Trump administration could, on day one, withdraw executive guidance and revise Department of Justice policies on discrimination: in the workplace, in health care, and in housing; for federal employees and contractors; and especially for transgender workers and students. He could, as Commander-in-Chief, reinstate the ban on transgender persons and gays in the military.
His effect on immigration could be catastrophic, for the LGBT community and beyond. As Commander-in-Chief, he has the right to ban groups of people from entering the country, for example, Muslims from certain countries, immigrants with HIV, etc. He could end President Obama’s “Dreamer” program for undocumented children, and seems poised to on day one. He could issue a nasty memo regarding marriage-based immigration for same-sex couples and LGBT asylum issues.
This is where the real threat to the LBGT community exists from President-elect Trump. He cannot overturn the right to marry, but he can make our federal lives very unpleasant, starting on his first day in office.
5. I also fear what type of federal legislation President-elect Trump and a Republican-controlled Congress might pass to implement their idea of the “religious objection” to marriage equality.
What Can You Do?
Those are the facts of the threats we face. Other practical things you can do to prepare for January include the following:
As we’ve always recommended, obtain an adoption or parentage order for your child. Do not rely on a two-parent birth certificate alone. Birth certificates are not entitled to full faith and credit across state lines. To get that “portability of judgment,” you must obtain a court order. We also recommend adoption or parentage orders because we want to freeze the parental rights in time, in case of changes in the law. We recommend court orders to secure portability of judgment in geography and in time. So-called “step-parent” adoption is not the only means to this end. Expanding upon the new Torres decision, and using arguments we have been making in surrogacy and other ART cases for years, parentage through the marital artificial insemination statute is now a reality for a lot of couples. You should speak with an experienced attorney to determine which option is best for you.
Even if you are married, and even if you don’t think you have significant assets, get a thorough life and estate plan in place with an attorney experienced in LGBT law. The estate plan should provide safety nets to the marriage and to any child-related court orders, adding different layers of protection. Health Care Powers of Attorney, HIPAA releases, and health care facility visitation authorizations may become important again under the new administration, even if you are married.
Update your child’s Social Security number record to list both parents as the child’s legal parents. Try to accomplish this before inauguration. You should not need a court order to do this, versus just a Parent/Parent (or even Mother/Father) birth certificate.
If your child is a U.S. citizen, seek a U.S. passport for the child now and make sure that State Department records list both parents as the child’s legal parents. Try to accomplish this before inauguration. Seek an expedited passport and pay the fee.
If you are transgender, consider seeking gender marker corrections on your federal documents immediately and before inauguration: your U.S. passport if you are a citizen; your immigration documents if you are an immigrant; and your Social Security number record in any event. For the passport or immigration documents, note that you do not need to obtain a state court order first. A letter from a physician (surgery is not required) can be sufficient. For the Social Security number record, use the passport or immigration document with the corrected gender. President-elect Trump can change these requirements very easily, on his own, on day one, as they come from regulations and memos written by President Obama’s administration and Secretary Clinton.
If you are eligible to apply for Social Security benefits based on a same-sex marriage or a non-biological child, you should speak with an attorney who specializes in Social Security to determine whether you should file quickly, within this presidency and therefore while the current regulations on spousal survivorship and dependent benefits remain in place.
If you’ve been considering filing an immigration petition for your spouse or step-child, or filing an asylum petition based on LGBT persecution, talk to an immigration attorney immediately about filing immediately (or not at all during the new administration, depending on the type of filing).
If you have applied for DACA (Deferred Action for Childhood Arrivals, the “Dreamer” program), or you are considering it, call an immigration attorney immediately.
Donate regularly to Lambda Legal, GLAD, the National Center for Lesbian Rights, the ACLU, and the Family Equality Council. They are the ones who bear the enormous financial and psychological burden of our high-impact cases like Wolf v. Walker, Obergefell v. Hodges, and Torres v. Seemeyer. Small monthly EFTs go a long way. These organizations will have a lot of lawsuits to file in the next few years, lawsuits that have the potential to directly affect you, your marriage, and your children.
Vote in all elections, especially in two years. We must establish a congressional check on the Trump administration. For two years, he will have a Republican-led Congress. Get others to vote in these “smaller” elections. As an Amy Schumer public service announcement suggested, shame your friends and family into voting, by pointing out that everyone can look online to see whether you voted.
Finally, do more than just vote. Voting is easy. Volunteer. Work at a poll. If you are an attorney or law student, join a voter protection program. Canvas for a candidate you support. Show gratitude for the democracy you are lucky enough to live in.
The reading of this article does not establish an attorney-client relationship with Emily or constitute legal advice from Emily to the reader or the public. Before relying on any general legal information contained herein, please consult legal counsel as to your particular situation.