1) Is the Supreme Court going to overturn same-sex marriage?

We don’t know. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution does not guarantee any right to an abortion. The Court’s primary reasoning was 1) the Constitution does not explicitly articulate the guarantee to such a right, and 2) such a right is not “rooted in U.S. history and tradition,” and is therefore not a “fundamental” right.

For the Supreme Court to overturn Obergefell v. Hodges, the case which recognized that the Fourteenth Amendment to the United States Constitution guarantees a substantive due process right to same-sex marriage, a party would first need to file a lawsuit. Such a case would likely be brought by a plaintiff challenging the enforcement of a state law that bans or restricts gay marriage, or some other state actor that does so. This is how Dobbs came to be—Mississippi enacted a law banning most abortions after fifteen weeks and an abortion clinic challenged this law in federal district court. After the court has issued a ruling or granted an injunction, one of the parties would appeal to a federal circuit court. The circuit court may reject the state’s argument based on Obergefell. However, it may apply an interpretation of the Fourteenth Amendment consistent with Dobbs, holding that the Constitution guarantees no substantive due process rights, such as the right to same-sex marriage, and same-sex marriage is not “rooted in the history and traditions of the United States.” If one of the parties appeals the circuit court’s decision, and the Supreme Court grants the appeal, it may choose to apply Dobbs and overrule Obergefell. This result is not guaranteed – Justices Alito,Kavanaugh, and Roberts have emphasized that the Dobbs decision does not affect current law around marriage. However, Justices Gorsuch, Kavanaugh and Coney Barrett have previously made similar claims surrounding the settled law around Roe, only to vote to overturn the decision. Additionally, other justices, namely Justice Thomas, have been outspoken about overturning other cases that rely on the Due Process Clause to establish rights not enumerated in the Constitution, specifically to include Obergefell. Whatever the Supreme Court decides, the decision is likely to be a very close one.

If the Supreme Court overturns Obergefell, the legality of gay marriage at the state-level will vary by state. This was the legal situation prior to 2015. Currently, thirty-five states ban same-sex marriage either through state constitution, state law, or both. In Colorado, gay marriage became legal in 2014, when the Tenth Circuit decided in Kitchens v. Herbert that a state-level ban on same-sex marriage was unconstitutional. However, if the Supreme Court overturns Obergefell, Kitchens is also overturned. If this occurs, Colorado’s statutory law banning same-sex marriage, signed into law in 2000, and its state constitutional amendment prohibiting the recognition of same-sex marriage, passed in 2006, take effect. If Obergefell is overturned, it is likely that in Colorado, a ballot measure or bill would be proposed to legalize same sex marriage.

Even if Obergefell is overturned, Colorado-based LGBTQ+ couples can still enter into a civil union, which provides couples state-level rights typically enjoyed by married couples, such as next of kin rights, spousal employer benefits, presumption of paternity, adoption, and inheritance. Because civil unions were established under state law in 2013, they are insulated from Supreme Court decisions. Additionally, the Supreme Court determined in U.S. v. Windsor that the federal government cannot treat a state-sanctioned same-sex marriage differently from a state-sanctioned heterosexual marriage. Therefore, the federal government will still be required to recognize same-sex marriages that are legal in the state that sanctioned them.

2) If the Supreme Court overturns same-sex marriage, how will that impact my current same-sex marriage?

It is unclear whether overturning Obergefell would invalidate existing marriages, but it is very unlikely. In Legal Effect of Proposition 8, which Lois A. Weithorn wrote to address the effects of California’s Proposition 8, Weithorn argues that the government could not invalidate a past marriage because the right of privacy afforded to married couples attaches at the inception of the marriage. Therefore, though a state may be able to prevent a same- sex couple from entering into marriage, it could not invade and terminate an already established marriage.

Next, the United States has historically had a presumption against the retroactive application of changes in law. The Supreme Court has echoed this principal time and time again, and the Constitution strongly supports the presumption against retroactivity. For example, the Ex Post Facto Clause of the Constitution at Article I, Section 9, Clause 3, and associated case law, prohibits federal and state governments from making ex post facto laws, which are laws that retroactively criminalize conduct that was not criminal at the time it took place. Thus, if states honor the nation’s deeply rooted presumption against retroactivity, existing marriages will not be invalidated. Also, invalidating past marriages would be a procedural nightmare for states, considering the legal and practical ways people restructure their lives around marriage. A state would not likely wish to burden its court system with the forceful undoing of many thousands of marriages.

Though it is unlikely existing marriages will be invalidated, it is not impossible. The Dobbs decision indicates that the Supreme Court may be open to scrapping or severely limiting the previously recognized fundamental right to privacy, which would weaken the first line of reasoning. Furthermore, the current Supreme Court’s willingness to overturn precedent makes its decisions less predictable, leaving questions like this difficult to answer.

3) How would overturning same-sex marriage impact parentage for my children or children I may have in the future?

In Colorado, a child can have two (and only two) parents regardless of whether the parents are married. An individual, regardless of sex, can establish a presumption of parentage through C.R.S. § 19-4-105. Someone can establish a presumption of parentage through marriage or civil union, such as if the child was born during the individual’s marriage or civil union to the child’s biological parent or within three hundred days after the marriage or civil union has dissolved or become invalid. Though overturning same-sex marriage would remove the presumption of parentage through marriage, a same-sex partner could still establish a presumption of parentage through a civil union. A same-sex partner could also establish a presumption of parentage through living with the child and publicly claiming and holding out the child as their own.

Additionally, under C.R.S. § 19-4-105(2)(a.5), the same-sex partner of a person who gave birth to a child may sign a voluntary acknowledgement of parentage (VAP), which constitutes a legal finding of parentage in Colorado. A birth parent’s same-sex partner could sign a VAP in these two circumstances: 1) they are or believe to be the genetic parent of the child, such as if one’s genetic material was used to conceive the child even though their partner physically gave birth to the child; or 2) they are the intended parent of a child conceived through assisted reproductive technology (ART).

Lastly, under C.R.S. § 19-4.5-109, if a same-sex couple has a child through surrogacy, each intended parent is legally a parent of the child, and the surrogate has no parental rights, so long as they have complied with all provisions of this law. The court will grant a parentage order, sometimes before the birth of the child, legally confirming the parentage of the intended parents.

Colorado also passed a law providing for confirmatory adoptions, which permit parties that use assistive reproductive technology to adopt their child in a simple, uncomplicated, and quick process that requires no court-appearances, home studies, etc.

4) Can same-sex couples in Colorado still adopt children if the Supreme Court overturns gay marriage?  

Yes. In Colorado, same-sex couples or LGBTQ+ individuals can adopt children under the same standards as heterosexual couples or individuals. Two people wishing to adopt a child need not be married or in a civil union to both adopt the child.

The Colorado statute governing adoption procedure, C.R.S. § 19-5-203, applies to heterosexual and LGBTQ+ couples alike. For couples who are in a civil union, if one parent is the biological parent of a child and the child’s other biological parent is deceased or their rights have been terminated, the partner of the child’s parent may initiate a stepparent adoption, just as a married partner can. For couples who are not in a civil union but in the same situation as above, the partner of the child’s parent can petition the court for a second- parent adoption. This option is more rigorous, as it requires a home study, but it still allows a parent’s unmarried same-sex partner to adopt their child.

For Colorado-based same-sex couples who have had a child through ART, the couple can complete a confirmatory adoption, governed by C.R.S. § 19-5-203.5, to secure the recognition of their parentage in Colorado and throughout the country. Confirmatory adoptions are streamlined – the couple files a petition including an explanation of their circumstances, a declaration that the child was born through ART with the consent of the parents, an attestation that no competing parentage claim exists, a sworn declaration of parentage signed by each parent, and an attached birth certificate. No home study, background check, or in-person hearing are required, and the court must order the adoption within thirty days of filing the petition.

5) How would overturning gay marriage impact my estate planning?

If Obergefell is overturned, unmarried same-sex couples will need to visit an attorney to grant each other the rights and responsibilities afforded someone upon the death of their spouse. For example, upon the death of one’s spouse, absent a will, the surviving spouse has priority in being appointed personal representative of the estate and will inherit some or all of the deceased spouse’s estate. The surviving spouse also may assert a claim for a family allowance, or money from the estate that the spouse can use to support themselves during the estate’s administration, and exempt property, which is a certain amount of money or property a spouse can shield from creditors.

Since unmarried same-sex couples do not have these spousal entitlements, they would need to work with an attorney to craft an estate plan and arrange other affairs, such as bank accounts and property ownership, to give their surviving partner any legally available rights similar to those of a surviving spouse.

6) What if I move (or even visit) outside of Colorado, how would that impact all of the above?

Under the Full Faith and Credit Clause of the Constitution at Article IV, Section 1, a state must acknowledge and give effect to the laws, records, and judicial proceedings of another state. However, under Section 2 of the Defense of Marriage Act, states are not required to give full faith and credit to same-sex marriages in other states. This Section has been ineffective since Obergefell, but overturning same-sex marriage would reactivate it. To combat this possibility, Congress has introduced the Respect for Marriage Act, which would prohibit states from refusing to recognize a marriage in another state based on sex, race, ethnicity, or national origin, regardless of whether the state itself would recognize the marriage based on its laws. The Respect for Marriage Act would also codify the federal government’s obligation to recognize and give effect to any marriage that was legal in place it was entered. The Respect for Marriage Act passed in the United States House of Representatives but has not been passed by the Senate as of the time of this writing.

Unlike marriage, no legislation exists allowing states the right to refuse recognition of parentage or adoption ordered in another state. Signing a VAP secures one’s status as a child’s parents across state lines, as 42 U.S.C. § 666(a)(11) requires states to acknowledge VAPs signed in other states. Furthermore, in V.L. v. E.L., the U.S. Supreme Court held that a state must recognize an adoption that occurred in another state if the granting court had jurisdiction. Thus, every state must recognize and give effect to court orders establishing parentage or adoption in another state. Though the Full Faith and Credit Clause cannot protect same-sex parents living outside of the country, same-sex parents who visit another country with their child should assert their parental rights by presenting their adoption order. Countries will likely give more weight to an adoption order than an acknowledgement of parentage, so parents should utilize the confirmatory adoption or other adoption process if they plan to travel out of the country with their children.

Who can I contact with more questions?

The attorneys are Gendelman Klimas, Ltd. are highly skilled in working with same-sex couples and non-traditional families in the areas of trust, estate, and family law. We would be happy to have a consultation with you regarding your questions to ensure that your family is protected during this uncertain time. Please contact us by phone at 720-213-0687 or email us at [email protected].

This Memorandum was prepared and edited by:

  • –  Kaitlyn Elrod, Student, University of Denver- Sturm College of Law
  • –  Sarah Mitchell, Esq., Senior Associate, Gendelman Klimas, Ltd.
  • –  Hannah Leisman, Esq., Associate, Gendelman Klimas, Ltd.
  • –  Laurence I. Gendelman, Esq., Partner, Gendelman Klimas, Ltd.

This memorandum does not in any manner constitute an attorney client relationship between Gendelman Klimas, Ltd. and the recipient/reader. While this information is about legal issues, it is not intended as legal advice or as a substitute for the particularized advice of your own counsel. Anyone seeking specific legal advice or assistance should retain an attorney. Gendelman Klimas, Ltd.’s attorneys are only licensed to practice law in the State of Colorado and does not provide any legal advice that may involve or implicate any other jurisdiction. This information is provided as is without warranty of any kind, either express or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement.