What Donald Trump Means for Michigan Family Law

It’s a virtual necessity that someone talk about it at some point: it’s time to get into what Donald Trump’s election means for Michigan family law attorneys and their clients across our state. We’ve heard quite a bit about how this group or that group will suffer this or that horrible fate, and the vast majority of it is ill-informed speculation — so let’s set the record straight.

All Existing Marriages are Safe
If you’re already married, whether you’re gay or straight, there is nothing that anyone in the Federal government can do to take that away from you. The law is ironclad: once a state has formally recognized a marriage, it cannot “un-recognize” that marriage, and every other state must acknowledge a marriage that has been formally recognized by any one state.

Future Homosexual Marriages are Probably Safe
Trump was pretty clear that he doesn’t intend to take any action to overturn the Supreme Court’s decision to legalize gay marriage nationwide. This doesn’t mean that someone else won’t try, but it does mean that it’s not terribly likely to be pushed, and it’s not terribly likely to actually be overturned if it is pushed. Even though Trump will likely appoint a staunchly conservative Supreme Court justice, it’s important to remember that the justice he’s replacing was Antonin Scalia — one of the most conservative men sitting on the Supreme Court in the first place — so the status quo won’t be any different after the appointment than it was during Obergefell.

But Not All LGBTQ Protections Granted by Marriage Are Safe
That said, there are a few things that President Obama changed via executive order in terms of LGBTQ marriages — and one of the privileges of being President is the right to overturn (via executive order) any executive orders your predecessors have put into place. The relevant ones here are:

• An E.O. enacted in 2013 that declared that any immigration visa petition filed to allow a same­-sex spouse to immigrate to the USA would be treated identically to one filed for an opposite-sex spouse.
• An E.O. enacted in 2015 that declared that same-sex couples in a civil union but not formally married would be granted passports under the names given in their state’s recognized civil union.
• More broadly, and most worryingly, an E.O. in 2014 amended the list of classes protected in the Employment Non-Discrimination Act from “race, color, religion, sex, national origin, handicap, age, or sexual orientation” to all of the above plus “gender identity.” (Even sexual orientation wasn’t on the original list: Bill Clinton added that via E.O. as well.) If Trump saw fit to overturn Obama and/or Clinton’s additions, it would suddenly and legitimately become illegal to for employers to discriminate against LGBTQ people again.

All Existing and Future Adoptions are Safe
Adoption laws are set at the state level, not at the Federal level, and there is nothing that a Federal employee can do that will erase the adoption decision made by the state. Therefore, Trump’s election will have zero effect on existing and future adoptions.