How Amy Coney Barrett's Appointment to the Supreme Court Could Impact Your Relationship
The death of Justice Ruth Bader Ginsburg, who advocated for women's rights and a progressive society, has left the question of how the appointment of conservative judge Amy Coney Barrett to the Supreme Court could impact individual rights. With much at stake for many American families, one of the areas where Judge Barrett's appointment to the Supreme Court will make the greatest impact is visibly through rights for couples. On October 26, Barrett was sworn into the nation's highest court, the Supreme Court of the United States of America. Her new seat among the nine-member court, along with elected officials in the next election cycle, will certainly impact couples, entire families and even generations to come.
"What's at stake is that whom Donald Trump or Joe Biden appoints will come with severe consequences for an entire generation," says matrimonial law boutique firm partner Caroline Krauss of Krauss Shaknes Tallentire & Messeri LLP.
"This election, in my opinion, is so much more than the presidential election: It's about the Senate and the Senate Majority," says family lawyer Holly Davis, co-partner of Kirker Davis. "That's why Justice Ginsburg's death right before the 2020 election is crazy… If you're following a nontraditional route as a couple or if you don't have a law or rule that already exists as a couple, you're going to have a lot of discomfort with the next few years. We simply don't know how this court is going to rule—especially with reproductive rights."
Barrett's appointment will likely lead to new interpretations of the law that will impact relationships directly, ranging from reproductive rights to immigration law. Here, The Knot breaks down several issues of interest.
One of the highest profile legal cases related to marriage in the 21st century was Obergefell v. Hodges, a landmark ruling made in 2015 by the Supreme Court of the United States. "That is a landmark case that provides relief to same-sex couples and gives them the fundamental right to marry," says Davis. "In terms of marriage, unless there's a giant change in the legal landscape, which is very unlikely, LGBTQ+ couples have that fundamental right that they've been fighting for decades."
Prior to Barrett's appointemnt, however, Justices [Clarence] Thomas and [Samuel A.] Alito made comments questioning the court's precedent from 2015. "These major decisions like Windsor and Obergefell, should it be easy to undo them? I think not. It depends, however, on the case that comes before it," argues Krauss. "When we think back on those two most important cases, United States v. Windsor and Obergefell v. Hodges, it was the same split of judges. Now, we take out Judge Kennedy because he retired, and we take out Judge Ginsburg because she passed. Suddenly, we [are facing] a radical change of court."
Prior to 2015, lawyers drafted rights to protect their LGBTQ+ clients, something that could be the case under a conservative court. "When gay marriage was prohibited, lawyers drafted around it and created domestic partnership agreements, cohabitation agreements, which provided for certain rights and obligations for people who were trying to build a family and life together," recalls marriage lawyer Valentina Shaknes of New York-based firm Krauss Shaknes Tallentire & Messeri LLP. "Even if they didn't reach a legal status, a marriage is, at the end of the day, a bundle of rights, which you opt into and are created by law… Sadly, it's possible that we might find ourselves back in that time, where we are once again having to draft around narrow-minded and restrictive laws that deprive individuals of their rights--solely based on their sexual orientation. That's just one example of what the future can bring."
"The consequences of the new Supreme Court will be long lasting," she continues. "The impact on families will be multifaceted. There may be more the lawyers will have to do once again. To try and provide our clients with rights that will be taken away from them."
Legal experts, however, point to Justice [John G.] Roberts, who was appointed by President George W. Bush in 2005. "Judge Roberts has been doing what a good, real judge is supposed to do, which is apply the law and come out on the side of the law. Not policies," says Shaknes.
Family planning and reproductive rights are among the most highly contentious and questioned issues at stake with the appointment of the new conservative justice to the Supreme Court of the United States. Issues include a woman's right to choose, access to organizations like Planned Parenthood, which receives federal funding via Medicaid, steps to surrogacy, along with a focus on biological vs. adoptive parenting.
As there is no current case scheduled to be heard on reproductive rights at the moment, it's still essential to stay alert about how Judge Barrett's appointment could impact you and your relationship. As there is now a conservative majority on the Supreme Court of the United States, those who will most need access to resources like Planned Parenthood and healthcare insurance will be, once again, the most vulnerable population. "The interplay between federal and various state laws that have been enacted in connection with reproductive rights [will be worth watching]," says Shaknes. "New York has passed new surrogacy laws—or it's about to be passed. Will that be affected down the line too?"
Another potential area where couples and future marriages can be greatly impacted is through the issue of immigration, as part of the US naturalization process under Trump-appointed conservative justice Amy Coney Barrett. "Marriage is one of those ways people get to stay in this country," says Krauss. "We have an administration that is looking to exclude [some immigrants] and so would it surprise me if there's legislation or a federal regulation that was passed? Not at all."
The immigration process has never been an easy one for those who want to live in the US. "There's certain laws in place right now that allow people to be a legal immigrant and legal citizen of the US. Every president has influenced those laws in their own way depending on their politics. Under President [Barack] Obama, the enforcement of the immigration laws wasn't as strong. Meaning he wasn't kicking people out, and he was forgiving and more favorable to those who wanted to be citizens," says Davis. "President Trump has taken the opposite approach and has taken a conservative approach in areas of the law about immigration. He is making it very difficult for people to come into this country. No matter what your politics are, the process of immigration is already a fairly intense process and it takes a relatively long time—several years—and lots of different holes to go through to become a citizen. It's already difficult."
Unlike the areas of reproductive rights and LGBTQ+ marriage, immigration cases are currently on its way up to the Supreme Court. Ultimately, it's most common to expect a conservative court to make conservative rulings.
Simply put: if you're having an issue or concern about getting married to a person, whom you love, who is not a US citizen, then you must pay attention. "You should be concerned about the legislature and the laws that are getting created around immigration at the national level. It's not about the president or the Supreme Court as much as it is about the individual legislature," explains Davis. "Immigration law is this constantly evolving and moving set of rules based on the Senate and House of Representatives who are creating these rules… Voting and putting your energy behind a lawmaker who aligns with your set of beliefs about immigration is really what you should be doing right now."
While the country is at a standstill, there are areas where citizens can educate and further equip themselves as related to their rights. "We don't know what's going to happen with this election," explains Davis, whose Austin-based firm focuses on diversity and high-profile family law. Ultimately, she says, the biggest impact you can make is by exercising your right to vote on November 3. Remember, your voice counts and it can impact many others around you.