LGBTQ Texans fear Supreme Court will target same-sex marriage, leaving them legally unprotected
LGBTQ couples in Texas are setting up wills and power of attorney, as well as considering leaving the state altogether, in order to protect their rights post-Roe.
Haley Hickey, a recent law school graduate, plans to open her own law practice in her hometown of Lubbock. She also wants to start a family with her wife. But after Roe v. Wade was overturned by the U.S. Supreme Court in June, she says her life is in flux.
“If Texas goes after same-sex marriage, that kind of throws our entire future into chaos,” Hickey said. “I can’t go back in the closet, and all it takes is pissing off the wrong prosecutor for that to become personal animosity that can then be used against me and really jeopardize my career.”
Hickey, along with other LGBTQ Texans, are worried the court will revisit other rulings such as same-sex marriage. If the landmark case Obergefell v. Hodges is overturned, gay marriage would be left up to the states, making it illegal in Texas.
In that case, same-sex couples would not be able to get married because of existing laws in Texas, said Christina Molitor, a family lawyer based in San Antonio: “Both that constitutional amendment, which defined marriage as a union between a man and a woman back in 2005, and then the Texas Family Code says that a marriage license can only be issued to a man and a woman.”
Molitor said she’s received an increase of calls and emails from LGBTQ Texans asking how to protect their marital and parental rights ever since the Dobbs decision was announced a few months ago. Some have decided to take legal matters into their own hands.
“These are established couples who are raising families,” she said. “And to have to pick up and leave Texas just really seems unfathomable – unless, of course, your family is no longer going to be protected.”
Hickey and her wife are seriously considering leaving Texas, even if they don’t want to. The couple are both from Texas and want to live near their families. But if they were to move, New Mexico or Colorado are options.
“It’s kind of like frogs in boiling water,” Hickey explained. “We’re kind of like, should we get out while the water is steamy, but before it’s too late for us to jump? It feels like our safest bet right now is to leave the state.”
Molitor said there isn’t any historical precedent for what would happen if Obergefell were to be overturned. But she believes it’s unlikely that the marriage of a currently married LGBTQ couple would be deemed void. The real issue, she said, would be that LGBTQ people wouldn’t be able to get married moving forward.
Brandon and his husband, Carlos, both software engineers living in San Antonio, became concerned when they first heard the Supreme Court leak. Once the Dobbs decision was official, they decided to not take any chances.
“We wanted to establish a will just so that at the very least the other one gets to keep our house, our cars, our monetary assets, etc.,” Brandon said. “And then some of the other stuff that we were worried about was medical power of attorney, so if one of us is unconscious in a hospital bed the other one gets the rights to make those decisions of ‘Do we pull the plug? Do we do this risky surgery?’”
Brandon and Carlos also signed a durable power of attorney so they can legally handle each other’s finances. They’ve spent nearly $2,000 on a lawyer, a privilege they acknowledge not many LGBTQ people have. The couple never thought their martial rights would be in jeopardy when they moved back to Texas from Massachusetts in 2017.
“We actively made the decision to come back to Texas and be near family,” Brandon said. “We bought a house. We have a dog. We really set up roots here. And so it’s just kind of heartbreaking that we would have to possibly end up going against what we had set out for our lives to be just because of people don’t like us.”
And now Brandon and Carlos are gearing up to start a family, either through adoption or a surrogate. They worry the court could invalidate same-sex second parent adoptions if Obergefell is overturned. The two are considering moving out of the state as well and possibly relocating to Chicago or Denver.
“I try to kind of imagine life in another place and think about the good parts of it to try and kind of counteract that,” Carlos said. “Like if we’re living in a snowy place, I’ll try and imagine a fire, snow, Christmas, like happy things, but it’s still distressing. So, there’s no kind of getting around it.”
Cecelia Jordan moved to Austin for a Ph.D program with her partner, Zakiya Scott, after living in California for several years. The two were officially married, virtually, over Zoom in the state of Utah while Jordan was studying abroad in May. The couple needed to get married in order to move forward on a legal agreement with a sperm donor. Jordan will carry first and has already begun the insemination process.
“Even with the legal documentation, they could legally determine that Zakiya is not the parent,” Jordan said. “Even with all the estate planning, having adoption papers drafted before all these things. When you’re family planning, it just gets to this point where I’m like, ‘OK, if they overturn it, we have to leave Texas like immediately.’”
Scott said it feels like the state is stripping away their agency.
“This isn’t just about, like, one thing. It’s like the spectrum of state violence, especially on Black people – in this case, we’re talking about Black birthing people. But it’s also Black non-birthing people,” Scott said. “Whether or not you choose to discontinue the pregnancy, whether or not you go through the pregnancy, after pregnancy, there’s all of these levels of violence that we’re withstanding.”
Jordan grew up in East Texas and wants to raise her children near her family.
“In order for my queer family to be safe, they might not be able to be around the massive family that I have that is so loving,” Jordan said. “My grandparents are still alive, so I wanted to stay close to home as long as my grandparents are alive, because I know it’s such a gift. We really wanted to come back to the South and build roots where we come from.”
Molitor reminds clients that overturning the Supreme Court’s same-sex marriage ruling would take time.
“I think that although I completely understand the fear and the question, it’s more important to just take a deep breath, realize nothing’s going to happen overnight and there’s going to be ample warning if it looks like this is going to be an issue that the Supreme Court’s going to decide,” she said. “People should just try to focus on living their lives now. And when it really becomes an issue, then start thinking about whether or not they should be leaving the state to a more friendly state.”
But Carlos says it’s exactly this uncertainty about the future that’s troubling.
“People talk about law and order, but it really throws disorder into our lives when you can’t count on the stability of law, especially when I’m planning on fundamental things like where to live.”
If the Supreme Court were to overturn the same-sex marriage ruling, 25 to 30 states would make it illegal, according to Poynter. The only state bordering Texas without a ban on same-sex marriage in the books is New Mexico.