Can my same-sex marriage be undone?

We’ve been getting a lot of calls, emails and texts over the past few days about the validity of same-sex marriages moving forward, and whether current marriages could be undone. The short answer is, more than likely NO.

Of course, no one can accurately predict what the future holds, and our response below is our opinion. After monitoring many of the like-minded political “think tanks” and reviewing the comments of our colleagues located throughout the United States, we offer the following.

Is an attack on Obergefell next?

There does not appear to be any planned attack on Obergefell at this time. Other than the mention by Justice Thomas, which may be a forecast of things to come, there is no case pending at this time. Of course, that is not a guarantee that it will not come under scrutiny at some point in the future.

What will happen if Obergefell is overturned?

Like the recent ruling in the Dobbs v. Jackson Women’s Health Organization case, which overturned Roe v. Wade, the case didn’t outlaw abortion outright; it cleared the way for states to reshape abortion laws state-by-state.

Were Obergefell to be overturned (and we do not believe this will happen in the near future), the federal law would revert back to what it was pre-Obergefell, and each individual state would be allowed to enact or enforce laws regarding same-sex marriage on a state-by-state basis. In North Carolina, this would impact future attempts to become married in a same-sex relationship, as our NC State Constitution still defines marriage as “between one man and one woman”, and our NC Statutes still ban same-sex marriages.

Can North Carolina invalidate my current marriage?

The most critical question at this time is, can the current law in our NC State Constitution and NC Statutes, banning same-sex marriage, be applied retroactively? The short answer is, more than likely NO.

A law applied retroactively (to past acts) is referred to as Ex post facto law. Ex post facto literally means “from something done afterward” and is understood to mean a law or change in the law to punish the action which was done before the enactment or change in the law. Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws).

Our State Constitution also specifically prohibits Ex post facto laws (Article I, Section 16.) So, should Obergefell be overturned (which we have no indication that this possibility is looming on the near horizon), our Constitution expressly forbids a law to be applied retroactively, including our marriage law.

If you were legally married in the State of North Carolina, then your marriage is valid, and will in all ways foreseeable at this time, remain valid in the State of North Carolina.

If you have any questions about your particular situation, give us a call at (919) 783-9669 to set up an appointment to speak with one of our attorneys. Haas & Associates, PA has been assisting the LGBT+ community for 20 years. We’ve been here through all the changes, and will continue to represent our client’s needs, no matter what legal challenges present themselves.