How Protected is The LGBTQ Community in 2020 & Beyond? Legal Expert Weighs In

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The LGBTQ community has been in a state of fear and terror after Judge Amy Coney Barrett was appointed to the Supreme Court of the United States earlier this month. 

ACB is known for her stances on being anti-gay which is quite troublesome given how conservative the Supreme Court has become under President Donald Trump‘s leadership. 

As if that wasn’t enough there’s also been news about the state of gay marriage remaining legal in the United States. And we also have to worry about Trump being re-elected next week which could cause even more problems and grief for us.

Victoria Ferrara, a top legal mind who works very closely with the LGBTQ community who is fielding numerous calls from gay and lesbian parents, chatted with Instinct Magazine about these topics and what we can do to fight for our rights amid all of this chaos.

What do you think are the biggest fears for the LGBTQ community now that Amy Coney Barrett has been appointed?

The biggest fear is that the conservative majority on the Court will eventually take a case about marriage equality or religious liberty as it relates to marriage equality procedures, and overturn the landmark precedent of Obergefell v. Hodges, a case stating that the right to marry is a fundamental right guaranteed to all including same-sex couples by the U.S. Constitution, specifically the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

If marriage is a fundamental right, then married couples should enjoy stability and security in their marriages and in their family lives. But to have to live with uncertainty and with questions about what might be done to undermine this stability creates stress, strain, fear and frustration in the LGBTQ community.

Another aspect of this is the security of the children of LGBTQ parents. These children should be able to be secure in their families. It is clearly in the best interests of the children (a legal standard in state courts when it comes to family law issues) that the marriages of their parents are secure and that their families are not faced with the prospect of being dismantled by a conservative SCOTUS.

There’s been these rumblings lately about gay marriage being revoked that began before she was even considered for SCOTUS. What can you tell us about that and should we truly be concerned?

Recently, before the appointment of Barrett, Justices Samuel Alito and Clarence Thomas expressed their view that Obergefell should be overruled in order to protect the religious liberty of people such as Kim Davis, the Kentucky Clerk who refused to grant marriage licenses to same-sex couples because, she claimed, that to do so would cause her to violate tenets of her religion.

It is no secret that the conservative justices would like to overrule Obergefell. Obergefell was passed by a 5-4 margin. Justices Alito, Thomas, Antonin Scalia & John Roberts dissented. There were various dissenting arguments. Roberts and Scalia argued that the SCOTUS, by ruling in favor of marriage equality, was bypassing the legislative branch of government, i.e., that the elected officials in legislatures were the ones who should be passing laws to allow same-sex marriages. Unfortunately this would lead to a hodge-podge of laws. Some States would pass laws in favor of marriage equality and some States would not, leaving all same-sex marriages vulnerable to attack or non-recognition in States with no marriage equality laws.

What have you heard from the gay and lesbian families that you represent or know in regards to all the recent news surrounding both?

LGBTQ lawyers across the U.S. are fielding numerous calls now from concerned LCBTQ citizens about the stability of their marriages, families, and their parental rights. One issue that has always faces LGBTQ parents was whether or not the non-genetic parent or the non-birth parent in the couple should adopt their children. They would do this by way of a co-parent adoption or stepparent adoption under State law.

Generally, when parents are married, both parents are the presumed parents of a child. For example, in a lesbian couple, the birth mother is the legal parent and the birth mother’s wife is the presumed legal parent and her name would also go on the birth certificate. For gay fathers, the genetic parent would easily become the legal parent and the non-genetic parent would also become a legal parent through a pre-birth order of parentage, for example, in the case of gestational surrogacy.

But LGBTQ couples must address the issue that the “presumption” of legal parentage by way of their marriages, must be fortified by the adoption process. With SCOTUS ruling in favor of marriage equality, gay and lesbian parents became a bit less concerned with the need for additional legal step of the co-parent adoption even though lawyers continued to suggest it is an important legal step. However, now, the need for the co-parent adoption has taken on a front and center position fueled by the fear of losing the fundamental right to marry.

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The call to vote has been stronger than ever this year but what can we do, a community and our supporters, to fight for all of our rights regardless of who wins next week?

The main thing is for people to become informed about the issues and to confront their fears and not allow the fears to immobilize them. Instead, we must mobilize and be vocal, know the issues, educate those around us, and support the amazing organizations working tirelessly to protect LGBTQ rights. There are a good number of such organizations and those that come to mind are Lambda Legal, GLAD and the Human Rights Campaign.

What do you think?