Is the Sky Falling on LGBTQ+ Rights in Texas?

person waving pride flag at rally

In June of 2022, the Supreme Court overturned a woman's right to abortion in Dobbs v. Jackson Women's Health Organization. Justice Thomas called for a review of all decisions that rely on a fundamental right to privacy, explicitly referencing Obergefell v. Hodges (the right to marriage) and Lawrence v. Texas (the right to sexual intimacy). Given the media's coverage of Justice Thomas's opinion, many LGBTQ+ individuals are concerned that the Constitution will no longer protect LGBTQ+ civil rights, including the right to marriage.

Who are we worried about?

Is the Supreme Court going to take immediate action to overturn same-sex marriage? The short answer is no. Despite Justice Thomas's zeal for reversing LGBTQ+ civil rights, there is currently no case in front of the Supreme Court that would allow the court to consider whether to overturn Obergefell. No case would likely be in front of the Supreme Court for at least three to five years. Similarly, the Texas Legislature only meets every other year for several months. Many bills are already being filed for the Legislature to consider; however, concerning marriage, the Texas Legislature could only pass a "trigger" law that would go into effect if the Supreme Court overturned Obergefell.

However, one scenario that keeps me up at night is the doctor emboldened by Justice Thomas's desire to revisit Obergefell by creating a case where they refuse to recognize a same-sex marriage when a spouse is lying in a medical facility needing treatment, and the doctor decides to go to estranged family members for medical decisions instead of the legal spouse.

How do LGBTQ+ individuals and couples protect themselves?

GET AN ESTATE PLAN! Estate plans often include powers of attorney, wills, and an appointment for disposition of remains, to name a few of the documents. These documents override Texas law that designates which family members can make decisions on your behalf. Only the people you select can make decisions, regardless of relationship status, if you have an estate plan. Equally important in estate planning documents for LGBTQ+ individuals are expressly excluding any person you do not want to make decisions on your behalf. This may include estranged family members or ex-spouses.

The most important aspect of estate planning is that if you do not have an estate plan, Texas law has a hierarchy of who can make decisions that you cannot otherwise challenge; estate plans explicitly override those Texas laws.

Despite the shockwaves that the Dobbs opinion is creating, there is a way forward to protect yourself. The attorneys at DebnamRust are here to help protect you. Call today for an estate planning consultation.