The excuse of religious freedom is being used more and more these days in an effort to allow individuals and businesses the right to discriminate against LGBTQ couples.
While Obergefell gave LGBTQ couples the ability to marry and recognized their marriages nationwide, LGBTQ people can still be denied housing, service and employment. Looking ahead, attorney Angie Martell of the Iglesia Martell Law Firm in Ann Arbor encourages couples to proactively protect themselves and their families.
1. If you plan to have children or have children you should seek legal counsel. Married couples with children born of the marriage are automatically legal parents. They have presumption rights just like their heterosexual counterparts. Presumption rights can however be rebuttal. As long as you are married, you have the right to have both you and your spouse on the child's birth certificate regardless if you are the same gender. Couples should consult with an attorney to discuss possible further legal protections such as pursuing stepparent, second parent adoptions, or parentage orders. Children of a married couple also have inheritance benefits. Surrogacy raises several complex legal issues. If done incorrectly, parties can face criminal penalties. Couples should consult with an attorney if one spouse's sperm is used to inseminate an unmarried surrogate.
2. Unmarried LGBTQ 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 and social security benefits you are entitled to as a married person.
9. Seek culturally competent legal counsel. 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.
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.