Same-sex couples seek new legal protections after Clarence Thomas’ opinion in abortion case

Lawyers report uptick in concerns about status of marriages, wills, power of attorney

Published on: July 06, 2022 2:13 PM EDT|Updated on: July 06, 2022 2:14 PM EDT

Gita Deane and Lisa Polyak sit and chat in their home in Baltimore.
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Within minutes of Roe v. Wade being struck down last month, Baltimore attorney Lee Carpenter’s phone started ringing. The chorus of calls came from couples in same-sex marriages who were afraid that their legal protections were now in jeopardy because of a concurring opinion by Justice Clarence Thomas that many interpreted as a threat to overturn gay marriage.

“I heard from married clients who were wondering if this would invalidate their marriages. I heard from potential clients,” said Carpenter, an estates and trusts attorney at Niles, Barton & Wilmer and an adjunct professor at the University of Maryland Carey School of Law. “Interest has been brisk. There have definitely been people who have been in touch who I haven’t talked to in a while. There has been a significant uptick.”

Carpenter said clients have inquired about a myriad of options, such as establishing a power of attorney, drawing up a will or inquiring about a domestic partnership — anything that would provide protection for their significant other should a reversal occur. Some have even suggested moving up their wedding dates so that they can be married before a potential reversal of same-sex marriage.

The concern among many members of the Baltimore area’s LGBTQ community arises from the high court’s 6-3 ruling on June 24 overturning the Roe v. Wade decision, the landmark 1973 ruling that provided constitutional protections for abortion for nearly a half-century.

Two conservative justices stated that the ruling ending federal protections for abortion didn’t pose a threat to other rights recognized by the courts, including same-sex marriage. But many believe Thomas’ concurring opinion — which suggested that three other major Supreme Court rulings should be reconsidered foreshadows future attacks on LGBTQ rights. Maryland was one of the first states in the country to legalize same-sex marriage, by popular vote in 2012.

Byron Macfarlane, the register of wills for Howard County, said his office has experienced a spike in calls related to questions about domestic partnerships since the June 24 ruling. He suspects that is tied to Thomas’ concurring opinion.

“There is a lot of anxiety and a lot of concerns about how to protect themselves if there is a further erosion of rights by the Supreme Court,” he said.

Macfarlane said he has spoken with several colleagues from around the state — gay planning attorneys — who report being “inundated” with questions from same-sex couples in response to Thomas’ opinion.

“There has definitely been an impact in the community,” he said. “There is a sense that you could be next.”

Thomas’ concurring opinion has also raised questions in Maryland about exploring the possibility of establishing a domestic partner registry, according to Macfarlane.

While Maryland has limited benefits for those who can prove they’re in a domestic partnership, such as hospital visitation, it does not have a domestic partner registry, which can be used to provide numerous protections, MacFarlane explained. In Washington, D.C., if someone is in a registered domestic partnership and one partner dies without a will, the other inherits as if they were married, according to Macfarlane. In states without that — such as Maryland — the process of inheritance after death becomes more complicated.

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Ryan Anderson, 30, and her fiancee Adrienne Turner, 31, said they saw this coming. The two now plan to move up their November wedding if it appears that the Supreme Court will hear any cases that could reverse the legality of same-sex marriage.

“We plan to get power of attorney and such in place sooner than later,” said Anderson, a communications associate who lives in Federal Hill with her fiancee. The two have been together five years. “It’s high on my to-do list. We have one drawn up. We just need to take it to an attorney. We want to have it done prior to our wedding.”

A number of the couple’s friends moved up their weddings prior to the 2020 election out of fear that a conservative majority on the Supreme Court could target rights such as same-sex marriage. Shortly before the election, conservative Amy Coney Barrett was sworn in to replace the late Justice Ruth Bader Ginsburg, a stalwart liberal, which gave conservatives a 6-3 supermajority.

In the past year, those same couples have established a power of attorney, according to Anderson, who estimates that a third of her friends in same-sex relationships have taken preventative measures, such as taking that same legal step or moving up their wedding dates.

“Everything that we planned is set up to give us the [best] possible safety net that is possible at this time,” she said.

Still, Carpenter recommends his clients draw up estate plans.

Most plans include a will, financial power of attorney, and advance medical directive for each partner, according to Carpenter.

“These essential documents will authorize your partner or someone else you trust to manage your finances and health care if you ever become incapacitated,” Carpenter said. “They will also help to ensure the efficient transfer of your assets upon your death.”

A month ago, at a friend’s same-sex wedding in Utah, the subject of power of attorney was mentioned during one of the dinner speeches. Anderson said she was annoyed that some heterosexuals at the wedding were surprised by the number of additional steps that same-sex couples have to take to legally protect one another.

“I want people to see the extra work that we have to do just to remain in each other’s lives … the work that we have to do to achieve something that is just assumed for them,” Anderson said.

Lisa Polyak and Gita Deane, a Homeland couple who were at the heart of a 2005 ACLU lawsuit that preceded marriage equality in Maryland in 2012, are concerned that all of the time and money they have spent getting their relationship of 41 years recognized by the government might now be in vain.

“My wife and I worked really hard at securing marriage equality in Maryland,” said Polyak, a 61-year-old environmental engineer. “We’re worried.”

Before they were legally married, Polyak recalled, the couple had to fight to be present in pivotal moments of their two children’s lives. Polyak said she was once asked to leave the delivery room when Deane was in labor. The two also had to go through a second-parent adoption and create a legal package for both to have guardianship of their two children.

“That’s what happens when you don’t have the protection of a civil marriage,” Polyak explained. “Children who are born into a legal marriage are presumed to be the legal children of those adults. Because marriage equality was not available at that time, we were considered strangers to our children.”

Now, the couple will be closely monitoring the high court’s actions.

“We absolutely plan to [meet with a lawyer],” she said. “Now we will have to revert to a bomb shelter mentality of how we will respond legally if our civil marriage rights are taken from us.”

A Supreme Court decision ending same-sex marriage would apply only at the federal level, Carpenter said, with each state determining “whether to allow same-sex marriage within its borders.” That means married same-sex couples in Maryland should not be affected, and unmarried couples should still be able to get married in the state.

“But these marriages would not be recognized in states (where) same-sex marriage is illegal, and federal recognition of same-sex marriage could also end.” Carpenter said. “That could mean the end of important federal benefits, such as increased Social Security payments to a surviving spouse.”

Derek Chavis, 36, and his husband, Patrick Seidl, 30, plan to see a lawyer when they return from their Alaskan vacation.

“I think power of attorney and living will are in our near future, though,” said Seidl, a marketing professional.

The two are “terrified,” according to Chavis, a middle school teacher in Baltimore City. “But even more than the feeling of terror, we’re angry … I feel as though I’m living in an antiquated nation whose government cheers in the open about worsening the lives of their constituents as well as one where the minority wins. It’s very, very sad.”

Even though the Mount Vernon couple promised they were going to “disengage” from life, they wound up spending a significant time monitoring the ripple effects after receiving news of Thomas’ opinion. In fact, they immediately bought an internet package on their cruise ship so that they could keep abreast of the happenings.

“I’m still checking Twitter and several news outlets to see what’s next,” Chavis said. “I’m talking to my husband about a living will and testaments and powers of attorney. I’m trying so hard to not let the fear take over but yes, this is on my mind several times a day.”

Andre Cawley, 34, said that conversations about Thomas’ decision dominated a recent trip to New York City.

“I would find myself at someone’s house at a party and it would come up. You could tell people were angry at what was happening,” he said.

Cawley, a graphic designer who lives in Mount Vernon and has been married to his husband since 2017, said he is scared by the possibility of having his marriage invalidated. As a result, he plans to seek legal counsel and have paperwork drawn up to protect them both.

“I would definitely feel more secure if we filed those documents,” he said.

At FreeState Justice, a legal advocacy organization that seeks to improve the lives of low-income LGBTQ Marylanders, Legal Director Phillip Westry said the organization has received several calls following Thomas’ decision.

“There is a conversation how we would plan if the Supreme Court took up one of those cases,” Westry said.

Westry said the organization was closely monitoring other aspects of Thomas’ opinion, which could potentially scrap the rulings that protect contraception and same-sex sexual activity.

“This is the first time that Justice Thomas’ opinion has seemed to have some weight and pull,” he said. “That is concerning for those who have followed his career over the last 30 years.”

Westry said numerous friends who are involved in same-sex relationships have contacted him. Several are considering having a courthouse wedding.

“I don’t want people to make major life decisions — especially if they are not sure about who they want to be with. My perspective is a little more constrained,” he said.

In the meantime, Westry also recommends that couples make sure they are named as the beneficiaries on each other’s benefits plans and investments.

“You want to have that person or those people taken care of,” he said.

Editor’s note: This story has been updated from its original version.

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