What does a second Trump term mean for my same-sex marriage?

This Free Public Education Resource Does Not Constitute Legal Advice

It’s reasonable to be anxious that a second Trump term will mean the end of gay marriage. We have received so many emails from community members asking some version of: What does this mean for my marriage? 

To start off with, we have to say that there are a lot of question marks and likely will be for some time. During the previous Trump administration, there were a lot of things they threatened to do or tried to do that never came to pass. We don’t know how many of the things in Project 2025 or the other propaganda to which we’ve been subjected are actually likely to be attempted or, if attempted, accomplished, and we don’t know what the states are going to try to do in response, and we don’t know if any of those responses will do anything. A lot of the next four years are going to involve thinking on our feet as the government throws unpredictable hazards in our path – but that’s also been the last four years, and the four years before that. So we’ll do our best to give what information we have today, and make some reasonable predictions, and when things change – which they always do – we’ll be here with you.

Let’s break it down.

If you are already married, we haven’t yet identified any strategy through which a conservative federal administration can nullify or undo an existing marriage. If they were going to figure out a way to do that, they probably would have figured it out by now.

If you are considering getting married, we don’t think that you need to rush to get it done for fear of losing the ability to do it. While the federal recognition of marriage stemming from the case Obergefell v. Hodges in 2015 is in danger, we don’t need to panic about what it might be like to live in a world without Obergefell; we know that world well. We lived in it until 2015. 

We’ve been anticipating the overturn of Obergefell since Roe v. Wade was overturned two years ago, demonstrating this Supreme Court’s willingness to damage and ultimately destroy the constitutional right to substantive due process. The rights stemming from substantive due process, including the rights to abortion, contraception, marriage, and sexual privacy are all in danger at the federal level. 

The result of this is less likely to be a total cutting off of access to these things than a further balkanization of red and blue states. Some states, like New York, are putting whatever measures they can into place to try to protect residents’ access to these rights, while some states are waiting for the federal government’s leash to be taken off their longstanding “trigger laws” – restrictions on the books that will immediately resume being enforced as soon as federal constitutional protections are no longer a concern.

By our evaluation, it’s more likely that you’ll be able to obtain and have a legally valid marriage in the states in which you can have a legally valid marriage, and the damage in the legal realm will be primarily in your marriage’s portability – how reliably you can take it to another jurisdiction and have it still work. 

The final lens we want to make sure you have in your analysis is the lens of private corporations. The groundwork has been being laid both through judicial precedent (like Masterpiece Cake Shop and 303 Creative) and legislative advocacy (Religious Freedom Restoration Act and First Amendment Defense Act legislation at the state level and proposed at the federal) to provide authorization to any private corporation to cite strongly held religious beliefs as grounds for an exemption to any regulation – be it non-discrimination or anything else – that it wants exemption from. Under this line of legal reasoning, any religious or non-religious corporation can claim that compliance with a nondiscrimination law at the state or federal level, or any other regulation constraining its actions, is an unconstitutional burden on the religious freedom of the corporation, and so the corporation must be exempted from compliance with that law. 

This means that while we may be able to obtain and and keep technically legally valid marriages under the laws of friendly states, any corporation – from employer to hospital to adoption agency to incorporated landlord – has an easy path to rendering that legally valid marriage functionally meaningless. A hospital has only to claim that gay marriage (or interracial marriage for that matter) is against its religious beliefs, and it would be validly exempted from compliance with anti-discrimination regulations and have free rein to treat marginalized patients accordingly.

Project 2025 references this line of legal reasoning, affirms it, and suggests that it be codified in federal legislation, but it’s important to understand that this is not a risk that we may face if the Trump administration goes on a spree: this is the current state of the law.

What does this mean for your marriage? It becomes a question of threat modeling. 

When I talk through these questions with clients, I invite them to reflect on the circumstances they find themselves in where somebody has power over their lives, their families, their bodies, their autonomy. Where another individual gets to make a decision about whether they’re going to make things more or less difficult for you, and you have to hope that either they aren’t in the one-third of the population that would kind of rather you were dead, or that if they are, there’s some external force preventing them from acting on it.

Maybe that’s going through the TSA, or trying to get some kind of medical care. Maybe it’s when you get pulled over for having a taillight out, or when you’re applying for a lease. Maybe it’s when another mom at your kid’s school is deciding whether she wants to call child protective services because she thinks your kid’s other parent shouldn’t be able to pick them up at school, or it’s when the child protective services agent shows up at your house to see if the claim has any merit and has to evaluate if they think your family is an okay place for a child.

In those circumstances, how do those people use that power over you? Do the people you encounter in your life seem, generally, to be motivated to make your life harder? Do they seem barely, if at all, contained by those external restraints preventing them from harming you?

This question is often impacted by the other axes of power and oppression that run orthogonal to queerness, like gender and gender identity, race, class, immigration status, religion, ability, and geographic location (all of which, of course, intertwine complexly with each other). A poor and disabled trans person in a same-sex marriage in a conservative area will have a different experience of having their marriage respected and validated than a wealthy cisgender gay couple living in Chelsea.

But what’s changed? It’s about those external restraints, some of which are laws and anti-discrimination protections, and some of which are social norms, and some of which are bystanders that we hope will step in if nothing else does. There was already a dividing line between those of us who could safely rely on those restraints and protections and those of us for whom they’ve always been illusory, and I think we can expect the placement of that line to shift a little bit – the boundary around which LGBTQ+ community members are afforded meaningful legal protections is constricting further and further, and more and more of us get squeezed out into the place where if we find ourselves under the authority of a border agent, pediatrician, court-appointed psychiatrist, or landlord, the only thing we have is hope that they’re not in that one-third, because if they are, there isn’t really anything left to stop them from acting on it.

I know this sounds bleak, but look. The etymological root of the word “apocalypse” is “a revealing.” Everything that seems like the end of the world is actually just the end of an illusion. We – for some value of “we” – have had a really nice couple of years of operating under the illusion that the United States is invested in protecting minority populations from majority rule and will pass and enforce laws to that effect.  

In the absence of that, what does it look like to show up for each other? How do we help each other navigate inherently hostile systems? What does it mean to fight under and within and with a legal system that doesn’t protect vulnerable people from harm, because that’s not what it was set up to do, and that’s not what it’s ever really been for? There is so much wisdom available to us on these questions when we look to the elders in our movements. When we read Pauli Murray, when we read June Jordan, when we read Leslie Feinberg, we can feel ourselves held by a queer lineage that doesn’t rely on the law to protect us, because we protect each other, and that can teach us the skills and the resilience to know these systems are hostile to our existence, and still thrive.

If you have been experiencing being in the class that the law protects and does not bind, and if now is the moment that you’re recognizing yourself as a member of the class that the law binds and does not protect – come on in! The water’s fine.

Andy Izenson, Esq.

Senior Legal Director

Chosen Family Law Center