By now everyone has heard the US Supreme Court overturned Roe v. Wade in the Dobbs decision issued June 24, 2022. Also snuck into Justice Clarence Thomas’ concurring opinion was a not-so-veiled “wish list” of societal advances he’d like to take a swing at reversing. The “originalism” theory Thomas works under (unless it suits his political ideology otherwise) is that if the authors of the US Constitution didn’t put a right in there then it doesn’t exist … in other words he suggests society can never evolve as we gain more knowledge and experience (never mind that when the Constitution was drafted women couldn’t vote, Black people were property, and the founders would have thought a dishwasher to be witchcraft).
A bigissue on Thomas’ list is the Obergefell decision which recognized same-sex marriage and required states to recognize valid marriages from sister states. The current Supreme Court has demonstrated an overt willingness to render opinions based on their political ideology recently, whether it be guns or abortion, so the fears of the LGBTQ community are not misplaced. Alabama is already using the Dobbs decision to attack the rights of transgender children to receive gender affirming medical care.
When the government got into the business of regulating marriage, the state created laws that afford certain rights to married spouses. For example, Kentucky permits a surviving spouse to receive certain property upon the death of the other spouse – this does not extend to couples not formally married. The Kentucky Living Will Directive Act provides that a spouse is the first person medical professionals consult when the other spouse no longer has decisional capacity for medical treatment and there is no other person appointed to do so. Without Obergefell, same-sex partners would not receive the benefit of that protection.
Overruling Obergefell will not happen overnight, but now is a good time for same-sex partners to consult a Kentucky estate planning attorney at 502-412-2254 to make sure they’re protected if that does happen.
