Back in 2016, after Donald Trump was elected President, we wrote an update for the community responding to people’s fears that their marriages were under threat. Today, we’re seeing the same concerns again. So here’s a short update on our original post.

The short answer is that there is still no realistic reason to fear that existing marriages of same-sex couples will be invalidated. The law remains as strong as it was in 2016 that if a marriage is valid when entered, it cannot be invalidated by any later change in the law. People who are already married still should not be concerned that their marriages can be taken away. 

What about folks who aren’t currently married but may want to in the future? There are still several reasons to think that the Supreme Court is unlikely to revisit its 2015 decision guaranteeing the fundamental right to marry for all couples nationwide, at least not anytime soon.

One reason for this is that Chief Justice Roberts, who originally voted against the freedom to marry, later voted to uphold that right in a 2017 case that NCLR took to the Supreme Court. In that case, we represented two couples who sued the State of Arkansas after it refused to list same-sex spouses as parents on their children’s birth certificates. Although he had originally declined to support the freedom to marry, Chief Justice Roberts joined five other Justices in ruling that the Supreme Court meant what it said in its 2015 decision, and that states must grant same-sex married couples all the same legal rights as other married couples.

While we don’t know how the justices who have been appointed since 2017 would respond to a similar case, if their approach is like the Chief Justice’s in the 2017 case, the freedom to marry will continue to be guaranteed nationally. Of course, even if the Supreme Court were to reverse its marriage equality decision, that would not invalidate existing marriages or change anything in the many states that have adopted the freedom to marry under state law.

Public support for the freedom to marry has only continued to grow since the Supreme Court’s marriage decision. Just this year, California voters repealed 2008’s Proposition 8 and cast their ballots to enshrine the freedom to marry in the California Constitution. Similar shifts in public attitudes toward marriage have happened nationally.

In addition, Congress has now passed the Respect for Marriage Act, which ensures that the federal government must respect same-sex spouses for all federal law purposes and that a marriage that is validly entered in any state must be respected by all other states. So even in the worst case (and unlikely) event that the Supreme Court tried to undo its prior ruling on marriage equality, same-sex couples would be able to marry in some states, and their marriages would be respected by other states and by the federal government. Practically speaking, the Respect for Marriage Act ensures marriage equality nationwide regardless of what the Supreme Court does.

Here’s our original post from 2016:

Now that Trump has won the presidential election, we are hearing concerns and fears from many same-sex couples who are concerned that their marriages may be challenged or invalidated.  We are also hearing from couples who are not yet married, but worried that they may lose the right to marry under a Trump administration.

While there are many reasons for concern about the new administration, the freedom to marry—and the security of our existing marriages—are not in serious jeopardy.

There is no realistic possibility that anyone’s marriage will be invalidated.  The law is very strong that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law.  So people who are already married should  not be concerned that their marriages can be taken away. To the contrary, it is important that they continue to live their lives as married couples.  If you or anyone you know encounters any problem with your marriage being fully respected, contact NCLR or another LGBTQ legal group immediately.

For individuals who are not currently married but who may wish to marry in the future, it is also highly unlikely that the fundamental right of same-sex couples to marry will be challenged or that the Supreme Court would revisit its 2015 holding that same-sex couples have that fundamental right.

The doctrine of stare decisis—which means that courts generally will respect and follow their own prior rulings—is strong, and the Supreme Court rarely overturns an important constitutional ruling so soon after issuing it. In addition,  even the appointment of an anti-marriage equality justice to replace Justice Scalia on the Supreme Court would not jeopardize the Supreme Court’s 2015 ruling on marriage equality, and the great majority of Americans still strongly support the freedom of same-sex couples to marry.

In short, undoing marriage equality would be extremely difficult. 

For couples or individuals with specific questions about marriage, please feel free to reach out to our Helpline at 1.800.528.6257 or 415.392.6257, or email us at Info@NCLRights.org.