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The Chipping Away of Obergefell

By |2017-03-23T09:00:00-04:00March 23rd, 2017|Opinions, Viewpoints|


While many of us do not believe that marriage equality will be overturned let no one be confused that on the horizon there will be concerted efforts to strip gay and lesbian couples and individuals of rights. Our unions will mean little if through executive orders the federal government or state governments through state laws can enact religious exemptions that erode the rights and benefits afforded to that status by allowing the rise of religious exemptions that seek to protect the “moral convictions” of any one who believes that “marriage is or should be recognized as the union of one man and one woman. Our rights mean little if same sex couples have the right to marry but are treated differently than heterosexual couples, that is, you have the fundamental right to marry but no rights to equal benefits.
Remember while we still can marry in Michigan, LGBTQ people have no civil rights protections state wide. Remember that as you plan proactively to protect yourself and your family. You may have marital rights but you can be terminated for being LGBTQ in Michigan. You may have marital rights but someone can refuse to rent you a room for your honeymoon. As Americans we need to remember that “marriage” does matter for everyone and equal treatment is a clear aspect of the Obegerfell decision.
While Obergefell gave us the ability to marry and recognized our marriages nationwide, it unfortunately created a line in the sand. If you marry, you have certain rights as a couple and if you don’t marry, you may not have certain rights. One example is the right to bury or cremate your love one. Only spouses or relatives have say regarding these rights. When a person who is part of an unmarried couple of 30 years passes away his/her/their partner cannot bury them and cannot cremate them because they are not a blood relation or spouse. This person has to wait for a family member to contact the funeral home.
And while marriage may matter to some it may not be for everyone. For senior LGBTQ people, like their straight counterparts, marriage may not benefit them economically if they are receiving social security. We need to be able to protect all LGBTQ people and what is most important is to think strategically what is best for you.


Creating a family is equally complex as you seek to protect your relationship to each other and your children. How you create your children is something that should also be considered, that is, known donor, unknown donor, use of ART (Artificial Reproductive Technology, surrogacy, etc.)
While a child is presumed to be a child of the marriage there are other considerations and possible exceptions couples need to know. The rights of unmarried couples and married couples and parentage and custody are complex and not all attorneys are culturally competent in this area. Do your research before you hire an attorney.
When you choose a lawyer make sure they are culturally competent, that they understand your issues and what you are seeking. Lawyers often create bad law when they aren’t well versed or understand the legal trajectory. Make sure that you plan very carefully and think about whether the protections you create can be upheld in other states.


1. If you plan to have children or have children you should seek legal counsel. Married couples with children born of the marriage have presumption rights just like their heterosexual counterparts. Couples can pursue Stepparent and Second Parent Adoptions. Children of a married couple also have inheritance benefits.
2. Unmarried same sex couples with children need to explore how to protect the children and the non-biological parent’s rights. If a non-biological unmarried parent dies that child or children may not receive the non-biological parent’s social security. If something happens to the unmarried biological parent the non-biological parent may face great hurdles seeking recognition of that parent’s relationship with the child or children.
3. Think and Plan carefully your Estate and Trust Planning regardless if you are married or an unmarried couple.
4. For long term couples with short marriage dates (i.e. together 20 years but only married for 3 years) a post nuptial or considerations of what benefits you have retroactively should be explored. Prenuptials if planning to get married. Post nuptials if already married.
5. For long term couples about to marry, consideration about assets that are not “marital” but which you both have shared economically as a couple, especially retirement benefits, pensions, real property, etc.
6. Your marriage date is the date you were married not the date Michigan recognized your marriage. Obergefell acknowledged and resurrected all prior marriages. Be careful before you get married that you aren’t already married. It’s a crime called bigamy.
7. Before you get married make sure you weren’t married before. Was there a domestic partnership earlier in your other relationships that may have been elevated to a marriage? The State of Washington post Obegerfell stated that all domestic partnerships for people under the age of 62 have been converted to a marriage. Have you ever been in a civil union? This too can may pose an impediment for a future marriage.
8. Investigate all the employment benefits you are entitled to as a married person.
9. Seek culturally competent legal counsel.
10. Portability – Make sure all legal orders or documents are portable to every state of the union. We all deserve to be treated equally and with equal dignity and respect for these are the fundamental principles of our constitution. Some of us will choose to marry and some will not however let us as a movement make sure that if one of us is attacked that we all support each other, especially the most marginalized of us, for it will be the most vulnerable who will be attacked first.

Connect with Martell at the “LGBT Rights in the Trump Era – What Lies Ahead,” workshop on March 26 at 11 a.m. in the second floor ballroom at the MotorCity Casino Hotel in Detroit. For more information, call 734-369-2331, email info@iglesiamartell.com or visit http://iglesiamartell.com/about/.

About the Author:

BTL Staff
Between The Lines has been publishing LGBTQ-related content in Southeast Michigan since the early '90s. This year marks the publication's 27th anniversary.