Obergefell on the line

When attorney Heather Hazelwood got married, she was technically committing a crime. Wisconsin Statute 765.04(1) forbids residents from leaving America’s Dairyland to obtain a marriage that would not be legal in the state. 

But that’s exactly what Hazelwood and her now wife did when they traveled to Iowa to tie the knot back in 2011. It’s a risk she gladly took, but she was relieved when the Supreme Court’s ruling in Obergefell v. Hodges meant other LGBTQ+ couples wouldn’t have to weigh the odds of arrest on what should be one of the happiest days of their lives. 

Now, with challenges to Obergefell bubbling up through the lower courts, Hazelwood is back to calculating risk and reevaluating the advice she gives clients at her estate planning and probate law firm, Ampersand Law, in North Carolina. 

- Bianca Prieto, editor

Have you seen an increase in urgency or demand from same-sex couples seeking to “get their affairs in order” just in case Obergefell is overturned? 

Yes. But in all honesty, the sense of urgency and concern has been growing since the 2016 election. And if you think about that, you realize that queer people basically got 1.5 years (after the Obergefell decision and before Donald Trump was elected) to set down the emotional burden of worrying about the recognition of our marriages before the threat came back (and back again).

Doing the math really puts that in perspective. That means you have been talking to your clients about the possibility of Obergefell being overturned since the ruling came down. How do you frame that conversation? 

Before anything else, I validate their concerns and I reassure them that we have ways to put some safeguards in place. Then I talk about how I assess the current risk level, which is a series of five IFs.

• IF #1: An appeal is made to the U.S. Supreme Court.
• IF #2: If the appeal isn’t “automatically” denied and instead, the Justices issue the call for response from the other side.
• IF #3: After the response has been reviewed, if at least four Justices vote to hear the case
• IF #4: After hearing the case, if at least five Justices rule in favor of the appealing party
• IF #5: Aka the super scary unknown IF: If marriage equality is overturned, and the question of legality returns to the state level, what does this mean for lawfully married same-sex couples living in states with laws on the books that ban same-sex marriage? Will the 2022 Respect for Marriage Act protect us? (And if yes, how long until that is also overturned?)

We've passed IF 2, but it's unclear if we'll pass IF 3 this time. And the “this time” is key, as I'm certain that if the most recent appeal fails, we'll see more. 

Roe v. Wade was decided in 1973, and between that and the 2022 Dobbs v. Jackson Women’s Health Organization decision, there were at least 12 abortion-related challenges that made it to the Supreme Court before the case that overturned Roe.

How can lawyers from different practice areas prepare to support LGBTQ+ clients in this uncertain legal landscape?

Although we are not a monolith, I feel confident in saying that the majority of queer people in the U.S. do not feel safe right now, and they have countless reasons why. The threat to marriage equality is just one.

So if you consider yourself an ally, you need to act as such. Small changes (such as asking about preferred names, preferred pronouns, using gender neutral pronouns and not assuming relationship statuses) are important signals that our lives matter.  

Showing grace and compassion and acknowledging that members of the LGBTQ+ community have legitimate reasons to be scared is even more impactful. 

It's important to acknowledge the mental load things like this take. I know I have some privileges that others in the LGBTQ+ community do not, and I'm willing to give a bit extra in hopes it helps people carrying burdens greater than my own.

Interview by Emily Kelchen

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Raise the Bar is written and curated by Emily Kelchen and edited by Bianca Prieto.