Should Gay Couples Worry About their Benefits Under Trump?

A 2015 wedding officiated by Andrew M. Cuomo, the governor of New York at the time. There is some concern that a conservative Supreme Court may revisit marriage equality.Credit...Ruth Fremson/The New York Times
We have so much to be grateful to Mario Cuomo. This is before the Supreme Court decision allowing the federal government to recognize gay marriages. But Mario was ahead of everybody and mindful this was a promised he made and promise kept. I never married but was and Am aware what that meant for all LGBTQ+ in the US and around the world.

 

By Tara Siegel Bernard

The New York Times

Before same-sex marriage was legalized, Tara Siegel Bernard and Ron Lieber calculated the lifetime costs that gay couples incurred from being unable to marry. The worst-case scenario: nearly half a million dollars.

For nearly a decade, same-sex married couples have received the same federal rights and protections that their straight counterparts enjoy. They include a long list of financial benefits, from spousal health coverage to less expensive tax preparation, not to mention the immeasurable comfort from knowing their unions must be recognized.

The Supreme Court granted those rights in two landmark cases — first in 2013, when it ruled that same-sex couples are entitled to federal benefits, and more broadly in 2015, when gay marriage was legalized across the country. Seven years later, a bipartisan coalition in Congress cemented many of those protections into law.

But even now, when The New York Times asked readers if they had money-related questions in the wake of the presidential election, several gay couples wrote with concerns about whether they and their finances may face new risks under a second Trump administration.

“I would like to think there is no reason to disrupt something that has worked so well for families, their children and society,” said Mary Bonauto, senior director of civil rights and legal strategies at GLAD Law, who argued Obergefell v. Hodges, the 2015 case that legalized the unions, at the Supreme Court. “It allows people to organize their families and affairs, pool finances, buy property and have kids. In the end, it is popular, and it harms no one.” 

Mr. Trump did not focus on same-sex marriage during his recent campaign, and it’s certainly not the divisive issue it was nearly three decades ago — the vast majority of Americans support marriage equality. There are more than 740,000 married same-sex couples in the United States, according to estimates from the 2022 American Community Survey.

But gay couples’ concerns aren’t entirely unfounded. The president-elect already reshaped the Supreme Court during his first term, appointing three conservative justices who are now part of a 6-to-3 majority.

And after the court dismantled Roe v. Wade in 2022, eliminating a nearly 50-year constitutional right to an abortion, Justice Clarence Thomas, in his concurring opinion, said the court should use that case’s logic to reconsider decisions on same-sex marriage and contraception rights.

Here’s a look at what that could mean and what’s at stake.

What financial benefits does marriage equality provide?

When viewed through a financial lens, marriage affords a long list of federal rights and protections: health insurance through a spouse’s employer, Social Security spousal and survivor benefits, estate tax advantages, retirement planning opportunities, pension rights and less cumbersome tax planning, among others.

Being denied those benefits can be costly. Back in 2009, my colleague Ron Lieber and I calculated the extra costs that a hypothetical same-sex couple might incur because the federal government did not recognize their marriage. In a worst-case scenario, the couple’s lifetime cost of being unable to marry was $467,562. But the number fell to $41,196 in the best case for a couple with significantly better health insurance, plus lower taxes and other costs. 

That doesn’t account for the emotional cost of being denied those benefits, or the anxiety over being denied recognition in hospital emergency rooms or anywhere else.

 

Where does the law stand now?

A large group of people waving flags and holding signs in support of gay marriage. 

Supporters of gay marriage outside the Supreme Court in 2015 after it ruled that the Constitution guarantees a right to same-sex marriage.Credit...Doug Mills/The New York Times

Marriage equality came incrementally. In 2013, the Supreme Court found that same-sex couples were entitled to federal benefits. But just two years later, Obergefell legalized same-sex marriage, a 5-to-4 ruling that enabled couples across the country to marry even if their states had banned it.

Since Obergefell established gay marriage as a constitutional right, protected by the 14th Amendment’s due process clause, the ruling cannot be overturned by Congress or an executive action. (Four justices would need to agree to hear a case to reconsider the ruling, and then five justices would need to agree to overturn it.)

In his majority opinion, Justice Anthony M. Kennedy wrote that the “right to marry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the 14th Amendment, couples of the same sex may not be deprived of that right and that liberty.” 

Since then, however, both Justice Thomas and Justice Samuel Alito have seemingly urged the court to reconsider the decision, which they say is an invented right that is not rooted in the Constitution and that stigmatizes people of faith.

Even if Obergefell was reconsidered, Congress put another backstop in place to protect families against any future rulings from a conservative majority that could chip away at their rights.

Just six months after the decision in Dobbs v. Jackson Women’s Health Organization took away the constitutional right to an abortion, President Biden signed the Respect for Marriage Act into law at the end of 2022: It officially erased the Defense of Marriage Act of 1996, which defined marriage as being between a man and a woman, and requires federal, state and local governments to recognize valid marriages without regard to sex, race or ethnicity.

But the bipartisan law — supported by 61 senators and 258 House members — doesn’t go as far as requiring all states to issue marriage licenses. If somehow Obergefell was overturned, the ability of same-sex couples to marry would be restricted to states that permitted it.

Could couples see their rights fray?

There have been efforts to dispute the breadth of the Obergefell decision, and gay rights advocates said they would expect that to continue. In 2016, for example, the Arkansas Supreme Court refused to list a biological mother’s partner on her child’s birth certificate, saying the partner was not entitled to a husband’s presumption of paternity, but the U.S. Supreme Court reversed the ruling the next year. In 2015, a county clerk in Kentucky, Kim Davis, was jailed after repeatedly refusing to issue same-sex marriage licenses because of her religious beliefs; the Supreme Court declined to hear her appeal in 2020. (Justices Thomas and Alito seized the opportunity to issue a statement criticizing Obergefell and its “ruinous consequences for religious liberty.”) 

But while the Supreme Court rulings and the Respect for Marriage Act law apply  to governmental rights and benefits, their reach is more limited in the private sector. If bakers or website designers want to deny services to gay couples based on their religious beliefs, for example, they might continue to try — but those actions would fall under state anti-discrimination laws. Many private employers — including Catholic nonprofits — who have denied benefits to their employees’ same-sex partner, would be subject to employment discrimination regulations.

There’s already concern that recent decisions could make it easier for businesses to turn away L.G.B.T.Q. customers. Last year, the Supreme Court sided with a Christian website designer in Colorado who refused to design wedding websites for same-sex couples, even though the state law forbids discrimination against gay people.

“We will see more of the religious objection claims,” said Douglas NeJaime, a professor at Yale Law School. “That could whittle away at anti-discrimination law,” he added. “That is more of a concern.”

What has Mr. Trump said on the issue?

His position hasn’t been entirely consistent. In early 2016, for example, he said he believed that same-sex marriage should be a states’ rights issue, and that he would strongly consider appointing justices to overturn Obergefell. But later that year, he said he was fine with same-sex marriage, which the Supreme Court had “settled.”

A Trump spokeswoman did not immediately respond to requests seeking clarification.

Is there anything that gay couples can or should do?

Even though same-sex marriage is the law of the land, several legal experts suggested taking a belt-and-suspenders approach when putting your financial and legal affairs in order. 

“Being able to marry provides lots of legal protections — a default set of legal protections — and those have been very important for same-sex couples as they have been for different-sex couples,” said Jennifer Pizer, the chief legal officer at Lambda Legal. “All of that said, it is always a very good idea for people, when they can, to prepare legal documents setting out their wishes for a crisis situation.”

That may include wills, medical and financial powers of attorney, and anything that nonbiological parents can do to solidify ties to their children, such as second-parent adoption.

“Many of these legal steps that people take can be very effective for managing this period of uncertainty and anxiety,” she added. “Take the steps that are within your power to take.”

Tara Siegel Bernard writes about personal finance, from saving for college to paying for retirement and everything in between.