Having worked on Florida marriage equality litigation and recently published the book advising LGBT couples about marriage (Before I Do: A Legal Guide to Marriage, Gay & Otherwise), my email, social media feeds and voicemail quickly filled with panicked inquiries from LGBT people fearful about the validity of their marriages after the election of Donald Trump. Will my marriage be valid after January 20th? Should my partner and I rush to get married before the inauguration? People want to know.
The National Center for Lesbian Rights, a powerful advocacy organization celebrating its 40th anniversary next year, issued this crystal clear statement within hours of Senator Clinton’s concession speech that said, “There is no realistic possibility that anyone’s marriage will be invalidated.”
The legal consensus is that legally married couples will continue to be married—and anyone who encounters problems with their marriage being fully respected should contact a LGBT legal group immediately. For more information including a helpline to contact if you are experiencing any issues with the recognition of your marriage, see here.
If you are married legally anywhere, you are married here. Those of you in Canadian marriages (or from the U.K. or anywhere it was legal) need not re-marry in the U.S. Your marriage is recognized and valid nationwide.
If you are not married, you need not rush to get married. While in many ways, Inauguration Day will be the beginning of major difficulties for us and our myriad passions, it’s not likely to mean the end of the freedom to marry.
If you do decide to get married, please be informed about the legal consequences of marriage. You need not read my book but please familiarize yourself with the points it raises. Don’t rush in.
While married LGBT people should not be concerned that their marriages can be taken away, there are some immediate areas of concern for LGBT couples:
- If you are in a bi-national relationship and one of you is undocumented, seek counsel immediately from an immigration lawyer to see whether marriage would help adjust status, so if the threats of mass deportation are carried out, you’re protected.
- If you are parents, it is now more important than ever to obtain confirmatory adoptions, even if you are married. The right to marriage equality may be enshrined across the country, but how that marriage impacts parental rights is decidedly not universal. An adoption or parentage order which confirms your parental rights is strongly suggested, even if you are both already on the child’s birth certificate.
- Having a will in place and clear advance directives for your health care is important for everyone and continues to be essential for all LGBT people, including married couples.
- People do not have to carry or show their marriage licenses to validate their marriage—a simple statement of the fact is enough in the majority of cases. If you are asked to show your marriage license, you should report examples of being asked to do so here.
Beyond marriage, our community faces other harms. It is incumbent upon all of us to speak in solidarity with LGBT people of color who can feel particularly vulnerable in the wake of an election that targeted African-Americans, Muslims, Latinos, and many other communities of color. Moreover, the vocally homophobic Vice-President leads the transition team and then takes office, creating concerns for many LGBT people and those living with HIV/AIDS.
It is of urgent importance for members of our trans community who might seek to obtain federal documents (such as passports, social security cards, and immigration records) with corrected gender markers to do so now. The current streamlined policy that President Obama put in place is potentially in jeopardy.
Learn the status of your state and local law with regard to employment non-discrimination and other laws protecting against discrimination. Take care to protect yourself and your family.
Another segment of the LGBT community facing increased vulnerability in the near future is our elders. Many protections LGBT older adults count on, such as financial security, health care access, affordable and welcoming housing, and culturally competent services, can be compromised by a rollback of the progress achieved at the federal level. If you or a loved one are part of this population and need help, support or referrals, the SAGE hotline can be accessed here.
The reasonable approach at this point is to assume that marriage equality will not be overturned; it is a constitutional right and it is a privilege that gives us as a LGBT community an opportunity to turn our attention to what we can do about the many other concerns facing us and our allies. Get up, get out, get involved.
Elizabeth Schwartz is an attorney, author of Before I Do: A Legal Guide to Marriage, Gay and Otherwise (The New Press, 2016), co-chair of the national board of SAGE (support their work critical work here) and a member of NCLR’s National Leadership Council and National Family Law Advisory Council.
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