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  • Writer's pictureLeslie A. Farber

Is your Marriage at Risk?

wedding bands on an LGBTQ flag

No doubt you are aware of the U.S. Supreme Court’s (SCOTUS) recent decision (Dobbs) overruling Roe v. Wade which had guaranteed for a generation the right to have an abortion.

The situation was inflamed by Justice Thomas’ extraneous comments in a concurring opinion to Dobbs that the Supreme Court next consider overruling the marriage equality victory, the right to access to contraception and protections of same sex intimacy. Such language is meant to catalyze right wing legal groups to bring lawsuits to accomplish these musings.

Some of our clients and colleagues already are calling, emailing, and writing asking if their marriage is at risk. They also worry that their ability to create family through in vitro fertilization (IVF) or similar procedure may be compromised.

Here is what we think:

· If you live in New Jersey your right to terminate a pregnancy, your right to create family through IVF and other means of assisted reproduction, your right to marry and your right of sexual privacy remain intact. New Jersey laws protect these rights. Your rights are not dependent on a U.S. Supreme Court ruling.

· If you leave the state and have a judicial order confirming your parentage, you can travel and move without concern. That judicial order is subject to respect under the full faith and credit clause of the U.S. Constitution. A birth certificate alone does not confer these rights. A birth certificate is not proof of parentage. Trying to prove parentage through a birth certificate can be problematic. Unlike a judicial order, a birth certificate is not subject to respect by another state or a government agency.

· In the remote possibility of SCOTUS withdrawing its marriage equality decision, if you are married, your marriage will not be revoked. If you are in New Jersey, you can continue to marry whomever you want, no matter their gender. Fortunately, Governor Murphy just last January signed a bill which codified marriage equality into New Jersey law. The right to marry in New Jersey is not dependent on a SCOTUS ruling.

· You should make sure that any non-genetic, non-gestational parent has their parental rights confirmed through a judicial order. It’s easy to get. This will protect your child, making them eligible for government benefits and secure their ability to inherit through intestacy (that is, if you do not have a will). It also will enable your family to freely travel and move.

· Every family needs the protection of updated wills and other planning documents. If you have a college bound child, consider having them sign a proxy directive for health care in case they become hospitalized, and you want the right to have access to medical records and make decisions. Once a child turns 18, they are an adult, and your parental rights recede.

· In New Jersey, we don’t need new laws on these issues. That said, we are working on other advances for our community. For example, there is about to be proposed legislation to extend mandated medical insurance coverage for single people and same-sex couples to create family through assisted reproduction techniques.

· But the LGBTQ community and friends in hostile states and areas who will need help. We should explore developing means for them to gain access to the benefits of our laws. We need to support candidates for political office in those states who support the rights of LGBTQ individuals and families.

We are not going back. Remain strong, remain brave.

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