Getting Your Marriage Documents In Order Is a Good Idea

So far, President Donald Trump has followed through on his promise of making attacks on transgender Americans—and by extension the wider LGBTQ+ community—a central pillar of his decision-making. In the first month, his administration has pushed and enacted anti-LGBTQ+ policies including recent directives that use dehumanizing language to describe trans servicemembers, scrubbing federal websites of any reference to trans or queer people (including for the Stonewall National Memorial), removing all information about HIV and AIDS prevention, as well as issuing the CDC to forbid words such as “LGBT” or “transgender.”

As a result, LGBTQ+ couples in Arizona have expressed worry about the future—particularly their marriages.

It’s not a baseless concern: In the Supreme Court’s reversal of Roe v. Wade in 2022, Clarence Thomas wrote in a concurring opinion alongside the majority’s decision that the same logic to defeat Roe should also be applied to decisions that granted rights to same-sex marriage and struck down sodomy laws, which targeted gay men.

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Since then, states have tried to codify same-sex marriage into their constitutions: In the 2024 general election, Colorado made it part of its constitution, and Virginia is attempting to do the same with a bill that could be on voters’ 2026 midterm ballots.

In Arizona, though, efforts to enshrine same-sex marriage in the state constitution have failed every time—even today.

Current House Speaker Rep. Steve Montenegro (R-Goodyear), who has the power to decide what bills get heard for passage in House committees, hasn’t assigned Rep. Brian Garcia’s (D-Tempe) resolution that would ask voters in 2026 if they wanted to repeal Arizona’s marriage requirement and replace it with one that includes same-sex marriages.

Sen. Lauren Kuby (D-Tempe) filed a similar resolution in the Senate, but Senate Judiciary Committee Chair Sen. Wendy Rogers (R-Flagstaff) hasn’t scheduled it for public debate or input, a tactic committee chairs use to bypass bills they don’t want to be considered.

Neither Montenegro nor Rogers responded to comment before publishing.

The state has a less-than-virtuous history with same-sex marriage: In the 1990s, the state Legislature passed laws restricting marriage to different-sex couples and refusing recognition of same-sex marriages performed elsewhere. Voters later approved an amendment explicitly banning same-sex marriage that was deemed unconstitutional by a federal court in 2014. The Attorney General at the time, current state Superintendent of Public Instruction Tom Horne, wouldn’t appeal the court’s decision and ordered county clerks to issue licenses.

If the right to same-sex marriage were overturned, some argue that the state laws from the 1990’s would likely go into effect, banning the practice.

While some same-sex couples in Arizona are choosing to marry sooner rather than later, scholars say there is no immediate cause for alarm. Legal scholars told LOOKOUT that the Supreme Court’s 2015 ruling in Obergefell v. Hodges—which established marriage equality nationwide—can’t be undone anytime soon. And even if it does, current marriages are likely safe. 

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“The likelihood of the court overturning Obergefell in the near future is very low,” said Travis Crum, a law professor at Washington University in St. Louis. “I would go further to say the chance that the court would overturn Obergefell and then say that the marriages that were entered into under Obergefell are now void is basically nonexistent.”

Congress and the executive branch cannot revoke Obergefell—only a Supreme Court ruling could do that. But it’s less clear that even with the current makeup of the Supreme Court they would be inclined to do away with the ruling, altogether. 

“There is reason to believe that a majority of justices would be disinclined to do this, given that Justice Thomas was the only one to explicitly suggest it when Roe v. Wade was overturned,” said University of Arizona law professor Toni Massaro. 

However, there are ongoing legal efforts across the country aimed at challenging or undermining marriage equality. Naomi Goldberg, executive director of the Movement Advancement Project, cautions that while there are currently no direct challenges to Obergefell, legal attacks on the recognition of same-sex marriages could increase.

“It is far more likely that we will see efforts to undermine the ways in which marriages between same-sex couples are recognized than a direct challenge to the ability of couples to marry entirely,” Goldberg said.

Even though the risk of Obergefell being overturned remains low, legal experts advise same-sex couples to take proactive steps to secure their rights. If marriage equality were reversed, decisions on marriage would return to the states, potentially creating legal complications for same-sex partners.

Here are ways couples can protect themselves right now in the event that the Supreme Court does decide to hear a case on same-sex marriage:

You legal rights checklist:

Health care directives:

• Designate health care and financial powers of attorney
• Outline advance directives specifying your medical preferences
• Ensure your partner can make critical decisions on your behalf

Comprehensive estate planning:

• Create or update your will to include your spouse and/or children
• Establish inheritance rights and guardianship preferences
• Consider setting up a living trust

Guardianship planning:

• Nominate guardians for minor children
• Determine succession plans for personal or financial care
• Document your preferences for future care arrangements

Second-parent adoption:

• Discuss completing second-parent adoptions, even if two parents are listed on the child’s birth certificate
• Secure legal parent status regardless of biological connection
• Apply for LGBTQ+ family grants to potentially offset adoption costs

Property assets:

• Add transfer-on-death designations to property titles
• Review and update beneficiary designations on life insurance and retirement accounts
• Form joint ownership structures for major assets

For more information, Lambda Legal provides free resources and legal referrals to help same-sex couples protect their rights.