(p. 7) Implications of Obergefell for Same-Sex Marriage, Divorce, and Parental Rights
This chapter examines the implications of the 2015 landmark US Supreme Court decision Obergefell v. Hodges for same-sex marriage, divorce, and parental rights. Obergefell was heralded as one of the most significant civil rights victories in recent memory. The decision had an immediate impact on the lives of same-sex couples by providing uniform and nationwide access to both marriage and divorce. It ended a confusing patchwork of state laws, some of which recognized same-sex marriage and some of which prohibited not only same-sex marriage but also domestic partnerships and civil unions. Obergefell also ensured that all same-sex married couples would be eligible for federal benefits regardless of where they lived. The longer-term effects and applications of Obergefell remain unclear, especially with respect to parental rights. In addition, Obergefell ignited a backlash of religious exemption laws and there is concern that marriage equality may further marginalize individuals who do not marry or families who do not fit the two-parent mold. Finally, the absence of universal antidiscrimination protections for LGBT people means that Obergefell will be at best only a partial victory. In the majority of states, a same-sex couple that marries on Sunday can still be fired on Monday when they return to work.
Obergefell involved six consolidated cases from different jurisdictions that challenged state-level marriage prohibitions. Two of the six consolidated cases involved same-sex couples who sought legal recognition as parents, but Obergefell did not directly address parental rights. It is important to remember that marriage rights and parental rights refer to two different sets of rights and responsibilities. Marriage describes a relationship between two adults. Although the legal relationship between a parent and a child may be affected by whether the parent is married (p. 8) to the child’s other parent, parental rights are separate and distinct from marriage rights.
Obergefell affirmed that marriage is a fundamental right inherent in the liberty of the person and same-sex couples could not be denied that right under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. For the parents in these cases, the legal recognition of marriage equality meant that they now qualified for second-parent adoption. Despite some strong statements in the majority opinion about the interests of children being raised by same-sex couples, Obergefell left many questions regarding parental rights unanswered. It remains to be seen whether the equality and liberty principles enunciated in Obergefell will be broadly or narrowly applied.
The first section of this chapter provides an overview of Obergefell and the legal grounds for the ruling. It explores the importance of marriage equality, including access to divorce, and provides a description of the state of the law at the time of the decision. The second section focuses primarily on parental rights and the implications of marriage equality for parental rights. It discusses the potential application of Obergefell to a number of issues, including the legal presumption of parentage based on marriage and laws that restrict adoption. The third and final section examines some of the potentially negative fallout from Obergefell, including the sharp increase in religious exemption laws that provide a license to discriminate. It also discusses the concern that the normalization of marriage for same-sex couples will erase gains made in the recognition of nontraditional relationships and chosen family.
Obergefell v. Hodges—Marriage Equality
In Obergefell v. Hodges (Obergefell, 2015), the US Supreme Court recognized that marriage was a fundamental right of same-sex couples guaranteed under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. Obergefell invalidated state-level marriage bans and mandated nationwide marriage equality. In order to understand the impact of the decision, however, it is important to revisit the complicated state of relationship recognition for same-sex couples that had emerged prior to Obergefell. This section summarizes the ruling and explains the importance of securing nationwide access to marriage and divorce. It also provides a brief overview of the state and federal antimarriage laws that were invalidated by Obergefell and the earlier US Supreme Court case United States v. Windsor (2013).
The Obergefell decision involved six consolidated cases from four different states: Kentucky, Michigan, Ohio, and Tennessee. The plaintiffs included (p. 9) 16 same-sex couples, seven of their children, a surviving same-sex spouse, an adoption agency, and a funeral director. All of the cases presented essentially the same question of law. The plaintiffs argued that the state marriage prohibitions violated the US Constitution. In each case, the state either refused to grant a same-sex couple a marriage license or refused to recognize a marriage performed in another state. The plaintiffs all prevailed at the trial court level. The different federal District Courts that heard the cases all ruled in favor of the plaintiffs and invalidated the applicable state law prohibitions on same-sex marriage.
The lower court victories came at a time when a growing number of federal courts had begun to rule in favor of marriage equality. These promarriage decisions came on the heels of the 2013 US Supreme Court decision U.S. v. Windsor, which invalidated a provision of the federal Defense of Marriage Act (DOMA, 1996) that prohibited the federal government from recognizing valid marriages between same-sex couples. (The individual states license marriages, which the federal government looks to when determining federal benefits and obligations related to marital status.) The Obergefell cases were appealed in 2014 to the US Court of Appeals for the Sixth Circuit, which has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee. On November 6, 2014, a three-judge panel of the Sixth Circuit ruled 2-to-1 to uphold the state law marriage prohibitions. The majority opinion concluded that “[n]ot one of the plaintiffs’ theories . . . makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters” (DeBoer v. Snyder, pp. 402–403).
The Sixth Circuit decision broke ranks with four other federal Courts of Appeal that had earlier that year found in favor of marriage equality. The Sixth Circuit decision provided the circuit split that many commentators had thought was necessary to get the US Supreme Court to agree to review the issue of marriage rights for same-sex couples. The plaintiffs from the original cases, with the exception of the adoption agency, petitioned the Supreme Court to review the Sixth Circuit’s decision. The Court agreed to hear the cases and consolidated them on January 16, 2015. The newly consolidated case was assigned the name Obergefell v. Hodges because Obergefell was the case that had been filed first and had the lowest docket number.
The plaintiff in the lead case, Jim Obergefell, became the public face of marriage equality while the case was pending before the Court. As a widower, he had a particularly poignant story to share. When Obergefell’s partner of many years, John Arthur, was diagnosed with amyotrophic lateral sclerosis (ALS), they traveled from Ohio, where they lived, to Maryland, where they could legally marry. By that time, Arthur was extremely frail and had to travel on a medical transport plane. On July 11, 2013, Obergefell and Arthur were married in Baltimore on the tarmac at the airport. Arthur died three months later, and Ohio refused to list Obergefell as his spouse on Arthur’s death certificate. Obergefell sued to be (p. 10) included as surviving spouse on his husband’s death certificate and to have his husband’s status at death recorded as “married.”
On June 26, 2015, the Supreme Court ruled in favor of marriage equality in a five-to-four opinion. The opinion was announced on the second anniversary of U.S. v. Windsor and the twelfth anniversary of Lawrence v. Texas (2003), which invalidated criminal sodomy laws. Justice Kennedy authored the majority opinion and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy’s opinion cited the 1967 Supreme Court case Loving v. Virginia, which had overturned criminal antimiscegenation laws. Obergefell affirmed that marriage is a fundamental right guaranteed under the Due Process Clause of the Fourteenth Amendment. It further found that the denial of that right violated the Equal Protection Clause of the Fourteenth Amendment. The Court rejected the argument that the decision of whether to permit same-sex couples to marry should be left to the states, as well as the argument that allowing same-sex couples to marry would harm the institution of marriage. The majority concluded:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. (Obergefell, 2015, p. 2608).
Chief Justice Roberts and Justices Scalia, Thomas, and Alito all authored separate dissenting opinions. Chief Justice Roberts’s dissent was joined by Justices Scalia and Thomas. The Chief Justice disagreed with the majority’s Due Process and Equal Protection analysis, but his dissent is most notable for its claim that the Court had overstepped its constitutional authority. According to Chief Justice Roberts, the question of marriage equality should have been left to the political process rather than decided by the Court. He also warned that the majority’s opinion would have negative consequences for religious liberty and said that Justice Kennedy had unfairly maligned the opponents of marriage equality.
Nationwide Access to Marriage and Divorce
Obergefell mandated nationwide access to marriage—and divorce—for all same-sex couples regardless of their state of residence. The ruling carried great symbolic weight as a landmark civil rights victory. On the individual level, it meant that same-sex couples no longer had to navigate an increasingly complex web of state and federal laws governing the legal recognition of same-sex relationships. Prior (p. 11) to Obergefell, states were not required to recognize same-sex marriages performed in other jurisdictions. Some states had embraced marriage equality, whereas other states prohibited not only same-sex marriage, but also any lesser status, such as domestic partnerships or civil unions. The fact that relationship status was not portable meant that same-sex couples who had legally married in a state with marriage equality would be considered unmarried if they traveled to or moved to a state without marriage equality.
Although same-sex couples could travel to other states to marry, the same was generally not true for divorce. Unlike marriage, state divorce laws traditionally impose a residency requirement. Take for example a same-sex couple who lived in Ohio, which was a nonmarriage jurisdiction. The couple could easily travel to Maryland and legally marry. However, when they returned to their home state of Ohio, they would be considered unmarried. They would not qualify for any of the state benefits afforded to married couples nor would they be entitled to secure a divorce because under Ohio law they were not married. They could not travel out-of-state to secure a divorce because they would have to meet a residency requirement. In other words, you can travel to a destination wedding, but your divorce must be granted by your state of residence (Joslin, 2011).
For couples who had traveled out-of-state to marry or had later moved to a nonmarriage state and now wished to dissolve the marriage, the residency requirement for divorce left them in an unprecedented type of limbo. Although they were not considered married in their state of residence, they would be considered married in an increasing number of states and foreign jurisdictions. Despite their desire to dissolve the union, they were unable to secure a divorce and resolve outstanding issues regarding property and other interests. Neither spouse could travel out-of-state to remarry because she would be considered already married. Presumably, a spouse could marry a different-sex spouse in their state of residence, but she would be guilty of bigamy when her state of residence ultimately recognized same-sex marriage. In order to avoid this unenviable state of affairs, some states specifically addressed divorce when they enacted their marriage laws. For example, when Delaware enacted its marriage law in 2013, it waived its six-month residency requirement for divorce for Delaware same-sex marriages where the couple resided in a state that would not grant them a divorce (Delaware Code, 2015).
Until the 2013 Supreme Court decision U.S. v. Windsor, the federal government did not recognize same-sex marriages. Section 3 of the federal Defense of Marriage Act (DOMA) defined marriage for all federal purposes as a union between one man and one woman. Married same-sex couples could not file their federal taxes jointly or qualify for any of the federal benefits extended to spouses or married couples. Windsor invalidated the federal definition of marriage contained in section 3 of DOMA, which meant that legally married same-sex couples were considered married for all federal purposes and eligible to receive federal spousal benefits. It did not address section 2 of DOMA that purported to give states the authority to refuse to recognize same-sex marriages performed in sister states, (p. 12) contrary to the historical practice that states recognize as valid marriages from other states. Most importantly, Windsor did not address what law would control to determine when a same-sex couple would be considered legally married for federal purposes. Although it was clear that a married same-sex couple who resided in a state that recognized same-sex marriage would be considered married for both state and federal purposes, it was not clear what would happen in the case of a married same-sex couple who lived in a state that did not recognize same-sex marriage.
Returning to our example of the same-sex couple who lives in Ohio and travels to Maryland to marry: Prior to Obergefell, they were legally married under Maryland law, but not legally married under the law of their state of residence. Windsor did not address whether the federal government should apply the law of the state where the marriage was celebrated (i.e., Maryland) or the law of the state where the couple resides (i.e., Ohio). In a victory for same-sex couples, the Obama administration announced that it would recognize same-sex marriages under a “state-of celebration” rule wherever permitted by relevant statutory provisions. Under this rule, our Ohio couple would be entitled to file their federal income taxes jointly, even though they would have to file their tax returns as unmarried individuals for state purposes. Despite this expansive interpretation, there were several important federal benefits, including social security survivor benefits and veterans benefits that remained only available to married same-sex couples who lived in states that recognized their marriages because the relevant federal statutory language imposed a “state-of-residence” test.
The lack of uniformity created by this patchwork of state laws and conflicting federal standards imposed a cost on same-sex couples and their families, both economically and emotionally. Obergefell put an end to the uncertain status of same-sex marriage once and for all by imposing a nationwide rule. Married same-sex couples could now travel from state to state without fear that their relationship would be nullified when they crossed state lines. They were also entitled to federal benefits regardless of their state of residence. Married same-sex couples who chose to dissolve their relationships could also now file for divorce no matter where they lived.
The Long Road to Marriage Equality
The antimarriage laws that were invalidated by Obergefell and Windsor were relatively new developments. When the organized push for marriage equality began in the 1990s, the majority of marriage statutes in the United States were gender neutral and did not specify that marriage had to be between a man and a woman. The concept of marriage itself was so gendered that there was no perceived need to limit marriage to different-sex couples. In the 1970s, several early cases brought by same-sex couples seeking marriage licenses were decided solely on definitional (p. 13) grounds. The courts ruled that marriage, by definition, could only be between a man and a woman. For example, in 1972 the US Supreme Court dismissed an appeal from a decision of the Minnesota Supreme Court that ruled against a same-sex couple who had sought a marriage license. The Court cited the lack of a “substantial federal question” as the reason for the dismissal (Baker v. Nelson, p. 810).
The Supreme Court of Hawaii challenged this definitional certainty in 1993 when it held in Baehr v. Lewin that the denial of marriage licenses to same-sex couples constituted discrimination on account of sex under the state constitution and had to satisfy strict scrutiny. The court sent the case back to the trial court to determine whether the state could establish that it had a compelling interest in limiting marriage to different-sex couples. The nationwide pushback against marriage equality started almost immediately, orchestrated by advocacy organizations that adopted the label “pro-family.” As the Hawaii litigation continued, state legislatures began to amend their marriage statutes to provide that marriage is a union that can only exist between a man and a woman.
In 1996, the US Congress passed DOMA to clarify that the federal government would only recognize marriages between one man and one woman. Section 2 of DOMA addressed the fear that Hawaii could spread same-sex marriage across the country via the Full Faith and Credit Clause of the US Constitution (under which states historically have recognized other states’ marriage licenses). Section 2 of DOMA purported to grant states the right to refuse to recognize out-of-state same-sex marriages. The national concern that Hawaii would export same-sex marriages to other states proved premature. In 1998, the voters of Hawaii approved the first state constitutional amendment that restricted marriage to different-sex couples, effectively ending litigation in Hawaii over the issue.
The chain of events in Hawaii demonstrated that legislation alone would not be sufficient to withstand a court decision in favor of marriage equality based on state constitutional grounds. Turning to citizen initiatives and referenda, the “pro-family” forces organized highly successful campaigns to amend state constitutions to prohibit same-sex marriage. A proposed Federal Marriage Amendment was introduced in Congress, but ultimately failed to receive sufficient congressional support. By 2004, 45 states had laws or constitutional amendments restricting marriage to a union of one man and one woman, and a number of states had both. Nineteen states eventually amended their state constitutions to prohibit not just same-sex marriage but also the grant of any of the “incidents of marriage” to same-sex couples. In addition to marriage, these broader amendments were designed to prohibit any nonmarital form of relationship recognition, including civil unions, domestic partnerships, municipal registries, and the grant of domestic partner employee benefits to public employees.
After the federal marriage prohibition, DOMA, was enacted in 1996, it took another eight years before Massachusetts became the first state to issue marriage licenses to same-sex couples in 2004 (see Goodridge v. Dep’t of Pub. Health, 2003). (p. 14) The initial cases that secured marriage equality on the state level were brought under state constitutional provisions, succeeding in several states such as Iowa and Connecticut. The first federal cases challenging the constitutionality of DOMA came from Massachusetts and did not arise until the late 2000s. At the same time, plaintiffs also began to challenge the state marriage prohibitions under the US Constitution. Federal litigation against state-level marriage prohibitions intensified after the Supreme Court invalidated section 3 of DOMA in Windsor. By the time the Supreme Court decided Obergefell in June 2015, marriage prohibitions only remained in effect in 14 states. Numerous lower federal courts had invalidated various state-level marriage prohibitions for violating the US Constitution, and a few states had enacted statutes permitting same-sex couples to marry.
Parental Rights After Obergefell
Two of the cases that were consolidated under the case name Obergefell had begun as challenges to restrictive parenting laws, but in both cases the parental rights at issue were tied to marriage. When discussing the impact of Obergefell on parental rights, it is important to remember that marriage rights and parental rights are two different sets of obligations. Marriage describes a relationship between adults, whereas parental rights exist between an adult and a child. A legal parent has both rights and responsibilities. She is entitled to custody or visitation and is empowered to make major decisions regarding the raising of the child. A legal parent is responsible for the child’s support and well-being. In addition, a legal parent–child relationship also entitles a child to inheritance rights and other important benefits, such as social security survivor benefits.
The determination of who is a legal parent may be affected by whether the parents are married to each other, but it may also be independent of the marriage relationship. In the absence of marriage equality, same-sex couples in many states were able to secure recognition as legal parents through liberalized adoption rules that permitted second-parent adoptions or joint adoptions by unmarried couples. Some courts were also willing to afford certain rights, most notably as custody and visitation, to nonbiological co-parents as de facto parents based on a functional view of family.
The majority opinion in Obergefell includes sweeping language regarding the importance of marriage equality to the children being raised by same-sex couples. However, it remains to be seen whether this dicta will influence parental laws that disadvantage same-sex parents outside the context of marriage. The following section reviews the discussion of parental rights within the Obergefell decision. It then outlines a number of parenting legal issues where same-sex couples remain at a disadvantage, including the marital presumption, adoption laws, and access to assisted reproductive technology.
(p. 15) Parental Rights in Obergefell
One of the consolidated cases that involved parental rights was DeBoer v. Snyder from Michigan. It involved a same-sex couple who had been denied a second-parent adoption because state law required the parents to be married. Second-parent adoptions are a variation of stepparent adoptions. They allow the partner of the legal parent to adopt the child without the legal parent relinquishing her rights. Beginning in the 1980s, courts began to permit unmarried same-sex partners to adopt their partner’s biological or adoptive child based on findings that it was in the best interest of the child to have two legal parents. The plaintiffs in DeBoer had originally challenged the restrictive Michigan adoption law as unconstitutional, but later amended their complaint to challenge the state prohibition on same-sex marriage.
The other consolidated case involving parental rights was Henry v. Himes (2014). It was brought in Ohio by four same-sex couples who were legally married in other states. Ohio refused to list the names of both same-sex spouses on their children’s birth certificates. Three of the couples lived in Ohio. One couple lived in New York, but their adopted son had been born in Ohio and, therefore had an Ohio birth certificate. Their minor son was also a party to the litigation. The plaintiffs argued that Ohio’s prohibition on recognizing out-of-state same-sex marriages violated the US Constitution.
In his majority opinion in Obergefell, Justice Kennedy highlighted the significance of marriage equality for the children of same-sex couples and seemed to justify marriage equality, at least in part, by its impact on children being raised by same-sex couples. Justice Kennedy expressly found that a “basis for protecting the right to marry is that it safeguards children and families” (Obergefell, 2015, p. 2590). He reasoned that without “recognition, stability, and predictability . . . children suffer the stigma of knowing their families are somehow lesser” (Obergefell, 2015, p. 2590). According to Justice Kennedy, the advent of marriage equality meant that children being raised by same-sex couples would no longer be “relegated to a more difficult and uncertain family life” (Obergefell, 2015, p. 2590). Justice Kennedy clearly believed that marriage equality would protect the interests of children being raised by same-sex couples, but there remain a number of gendered or otherwise restrictive provisions that complicate parental rights for same-sex couples.
The Marital Presumption of Parentage
The marital presumption of parentage provides that a husband is the legal parent of a child born to his wife during the marriage. The marital presumption is extremely important, especially from the child’s perspective. It ensures that the child has two legal parents from birth. It entitles the child to social security benefits and inheritance rights from each parent in case either or both parents die. Additional rules (p. 16) typically cover situations where the parents marry after the birth or the child is born after the father’s death. Some jurisdictions, such as the District of Columbia, have extended the marital presumption to include a spouse or same-sex partner of a woman who has a child through assisted reproductive technology (DC Code, 2015). The majority of states, however, still have gendered statutes that focus on the father and the determination of paternity. Because the marital presumption only applies to the spouse or partner of a woman who gives birth to a child, it does not apply to gay male couples. There is no comparable presumption for the spouse or partner of a man who fathers a child, unless the state has a surrogacy law that provides such a presumption. Surrogacy laws govern surrogacy agreements and the respective rights of the intended parents and the surrogate mother. The laws most favorable toward surrogacy allow the intended parents to obtain a prebirth parentage order to have their names listed as parents on the child’s birth certificate.
As states embraced marriage equality, married same-sex couples argued that the marital presumption should apply equally to same-sex spouses. Some states resisted, arguing that the marital presumption makes no sense when there is no biological possibility that the same-sex spouse is a genetic parent. For example, a registrar in Indiana explained that marriage equality, “doesn’t really change the way a birth record is done, because birth certificates all have to do with biological parents” (Bangert, 2015). This inherently gendered understanding of parentage is also reflected in the birth certificate forms that provide for the recording of the name of the mother and the father. Texas changed its forms to record the names of each “parent” in 2015, but only after being ordered to do so by a federal court citing Obergefell (Taffet, 2015).
State supreme courts in Iowa and Vermont have ruled that as a matter of state law a same-sex spouse or civil union partner of a birth mother is entitled to the marital presumption (Gartner, 2013; Miller-Jenkins, 2006). Under federal law, there is a strong argument that the failure to extend the marital presumption to same-sex spouses violates the Equal Protection Clause of the Fourteenth Amendment. The language in Obergefell clearly suggests that the children of same-sex married parents should enjoy the same rights as children of different-sex married parents and that the rights and responsibilities of marriage should be extended equally to same-sex and different-sex married couples. In 2017 the US Supreme Court held in Pavan v. Smith that the refusal of Arkansas to extend the marital presumption to married same-sex couples violated “Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage’ ” (Pavan, 2017).
Of course, the marital presumption is merely a presumption of parentage that may be overcome by sufficient evidence to the contrary. Although rare, there have been a growing number of cases where presumed fathers have disproven paternity through genetic testing (Jacobs, 2012). In the case of same-sex couples, a challenge would most likely come from a third party such as a known sperm donor. Moreover, the marital presumption is not considered a judgment that is entitled to (p. 17) Full Faith and Credit in other states. Take for example, a married same-sex couple who lives in Massachusetts, where the nonbiological spouse would be entitled to the marital presumption and listed as a parent on their child’s birth certificate. If they moved or traveled to another state that did not extend the marital presumption to nonbiological same-sex spouses, it is possible that the state would not have to recognize the legal rights of the second parent. For this reason, many family law practitioners working with same-sex couples advise the nonbiological parent to adopt through a second-parent adoption, described next (Taylor, 2016).
Second-Parent and Stepparent Adoption
When a child is adopted, her legal parent or parents are generally required to relinquish all parental rights and those rights are then transferred to the adoptive parent or parents. Adoption rests on the legal fiction that the child is reborn in her adoptive family. Stepparent adoption was an important reform to accommodate blended families. It permits the spouse of the legal parent to adopt without the legal parent relinquishing her rights. Take for example, a married different-sex couple. Assume that the wife has a child from a prior relationship and the child’s father is deceased. Under stepparent adoption, the mother’s new husband would be able to adopt the child without requiring the mother to relinquish her parental rights. Of course, if the child’s father were alive, he would have to relinquish his parental rights. Some states have taken steps to streamline the procedure for stepparent adoptions, such as eliminating the requirement of a home study, which is required for traditional adoption.
Prior to marriage equality, same-sex couples used the model of stepparent adoption to argue for second-parent adoption. Under a second-parent adoption, the partner of the legal parent is entitled to adopt as if she were a stepparent. It is basically a stepparent adoption for unmarried couples. Courts in many jurisdictions allowed second-parent adoptions on the theory that it was in the best interests of the child to have two legal parents, but some jurisdictions did not permit second-parent adoptions. As discussed above, DeBoer v. Snyder, one of the cases consolidated with Obergefell, involved an unmarried same-sex couple in Michigan who were unable to obtain a second-parent adoption because state law required the adoptive parent to be married to the legal parent. In the absence of second-parent adoption, the child could have only one legal parent.
With marriage equality, all married same-sex couples are eligible for stepparent adoptions, regardless of whether their state of residence recognizes second-parent adoptions. For same-sex parents who have conceived a child through assisted reproductive technology (ART) and are intended parents, it does not seem right to call the nonbiological parent a stepparent. For female same-sex couples, the marital presumption of parentage should apply, but as noted above, the marital presumption is neither conclusive nor portable. Accordingly, adoption remains an important legal tool for same-sex couples to secure their families.
(p. 18) Even if the parents are married and they are both listed on the birth certificate, a court order is necessary to ensure that both legal parents will be respected in all 50 states. This is because the Full Faith and Credit Clause of the US Constitution requires states to respect court orders from sister states. A birth certificate does not constitute a court order, and it is not entitled to Full Faith and Credit. In some states it is possible to get a parentage order from the court that should suffice to make the legal status of both parents portable (Taylor, 2016). However, it is clear that a valid second-parent adoption must be respected in all states based on the U.S. Supreme Court’s 2016 ruling in V.L. v. E.L. (2016). In a short unanimous opinion, the Court held that Alabama had to recognize a Georgia adoption by a nonbiological same-sex parent regardless of Alabama’s strong disapproval of same-sex marriage and same-sex parenting (V.L., 2016).
For married same-sex couples who conceived a child through ART, it can be disappointing and dislocating to learn that the nonbiological parent must adopt her own child. Adoption provides the greatest level of security for same-sex couples and their children, but it is also an expensive and sometimes invasive legal proceeding. The added requirement of adoption imposes an additional cost on same-sex couples, both emotionally and financially. Married same-sex couples that obtain a second-parent adoption also are not entitled to the federal income tax adoption tax credit, which is designed to encourage adoption, because it does not extend to stepparent adoptions.
A final complication is that at least one court has ruled that adoption is not available to an individual who is already presumed to be a legal parent. In 2014, a New York court ruled that a nonbiological mother was not entitled to adopt her child (McKinley, 2014). The court reasoned that adoption creates a legal relationship where none existed before. Given that the parents were married and the nonbiological mother was entitled to the marital presumption under New York law, the court determined that adoption was inappropriate. The case was roundly criticized by LGBT family law practitioners on the grounds that the court did not take into account the continuing legal ambiguities involved in same-sex parenting. Two years later, a decision from the same court, Matter of L., held that adoption was appropriate notwithstanding the marital presumption in order to promote the best interests of children being raised by same-sex parents. The court specifically recognized the “non-uniform, unsettled state of family law regarding the definition of legal parentage” (Matter of L., 2016, p. 2). It remains to be seen whether other courts will prohibit legal parents from adopting their children. The law in this area is uncertain and continues to evolve on a state-by-state and sometimes court-by-court basis. In Matter of L., the court accepted the compelling argument that the adoption was necessary to make sure that the nonbiological parent is recognized as a legal parent in all states.
Adoption is also important to secure rights upon dissolution of the marriage. In the absence of the marital presumption, a nonbiological nonadoptive parent may be able to sue for visitation and custody, but again the law is far from settled. Some (p. 19) states will allow nonbiological co-parents to sue for visitation and custody, but in other states nonbiological co-parents are considered legal strangers who have no rights. In 2016, the highest court in New York finally granted a nonbiological nonadoptive parent the right to sue for custody and visitation, provided the nonbiological nonadoptive parent can show by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together (In the Matter of Brooke S.B. v. Elizabeth A. C.C., 2016).
Restrictive Adoption Laws
Joint adoption is different from stepparent or second-parent adoption. Joint adoption allows two people to adopt a child together when neither is the legal parent. Some states restrict joint adoptions to married couples. With marriage equality, married same-sex couples will qualify for joint adoptions in all states. Before marriage equality, such a restriction necessarily barred same-sex couples from joint adoptions because they were not able to marry. Their only option was for one partner to adopt the child and then the other partner to adopt the child through a second-parent adoption, but this strategy only worked when second-parent adoption was available in their state of residence. If their state of residence did not allow second-parent adoption, then only one partner could be the legal parent (see Allen, chapter 11, in this volume).
Some states imposed restrictions on access to adoption that targeted same-sex couples, but these restrictions have been overturned since Obergefell. For example, a Mississippi law that prohibited married same-sex couples from adopting jointly was the subject of a federal lawsuit in Campaign for Southern Equality v. Mississippi Department of Human Services (Campaign, 2016). In 2016, a federal judge issued a preliminary ruling suspending the law, stating that it was “highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit” (Campaign, 2016, pp. 25–26). The state declined to appeal the ruling, and married same-sex couples in Mississippi can now adopt.
Assisted Reproductive Technology
Many same-sex couples use ART to form their families. Accordingly, it is very important to ensure that same-sex couples have equal access to ART. Barriers to access include the lack of insurance coverage, refusal of medical professionals to serve same-sex couples, and restrictive surrogacy laws. In addition, a number of states have enacted special parentage presumptions for children conceived through ART, but only a small number of states have enacted presumptions that apply regardless of gender (Polikoff, 2016). The disparate treatment of same-sex couples for ART purposes presents a claim of discrimination on the basis of sexual orientation and (p. 20) possibly gender. Same-sex couples should have an Equal Protection claim under Obergefell, to the extent the law treats married same-sex couples differently than married different-sex couples. However, constitutional protections do not extend to medical professionals or insurance providers who are private actors. In that case, same-sex couples have to look to statutory antidiscrimination protections. Currently, discrimination based on sexual orientation is prohibited in less than one half of the states (Human Rights Campaign, 2016a) and it is unclear the extent to which these prohibitions would cover ART. The extent to which sexual orientation discrimination is prohibited at the federal level is a complicated question of interpretation of sex discrimination protections that remains open to debate (e.g., Hively v. Ivy Tech Community College, 2017; Baldwin v. Foxx, 2015; US Equal Employment Opportunity Commission, n.d.), and there are no federal-level antidiscrimination laws that expressly cover sexual orientation in the ART context.
Assisted reproductive technology can be extremely costly and out of reach for many couples unless it is covered by insurance. For different-sex couples, ART is a medical intervention to address underlying infertility. Though same-sex couples may be viewed as infertile in and of themselves, insurance protocols routinely limit ART to instances of infertility that do not apply to the normal case of a same-sex couple who wish to parent (Beck, 2015). As a result, same-sex couples often have to pay for ART out-of-pocket. Some private employers provide ART coverage for their employees in same-sex relationships. More recently, states have begun to require insurers to provide ART coverage on equal terms regardless of sexual orientation. California passed such a law in 2013 (Verdin, 2013), and a Maryland passed a similar law in 2015 (Andrews, 2015).
Assuming that a same-sex couple has access to insurance coverage, they still need to be able to see a medical professional who is willing to provide services. Antidiscrimination laws in fewer than half the states prohibit a medical provider or hospital from refusing to provide treatment based on sexual orientation (Michon, n.d.). Recent federal regulations implementing the nondiscrimination provision of the Affordable Care Act provide some protection on the basis of gender stereotypes, which are often at work in sexual orientation discrimination (Human Rights Campaign, 2016b). Doctors have also refused to treat patients on religious grounds, claiming that being forced to care for LGBT patients would violate their sincerely held religious beliefs. (Religious exemptions are discussed in greater detail in the last section of this chapter.) In 2008 the Supreme Court of California ruled unanimously in North Coast Women’s Care Medical Group, Inc. v. Superior Court (2008) that California law requires physicians to provide fertility services to sexual minorities regardless of their religious beliefs.
For gay men, surrogacy is an important path to parenthood. Traditional surrogacy is where a surrogate mother is inseminated with the sperm of an intended parent or donor sperm. Gestational surrogacy is where an embryo created by the sperm of the intended parent or donor sperm and the egg from an intended parent or a donor egg is then implanted in the surrogate mother. Some states, however, (p. 21) do not recognize surrogacy and will not recognize the intended parents as legal parents. The extent to which these states are hostile to surrogacy varies. Some states will not enforce commercial surrogacy contracts, whereas a smaller subset of those states also affirmatively penalize commercial surrogacy arrangements (“Surrogacy laws by state,” 2013). Post- Obergefell, the argument can be made that that failure to recognize intended parents, especially when the parents are married, constitutes a denial of Equal Protection.
Some states have enacted special parental presumptions for children conceived through ART. For example, section 703 of the Uniform Parentage Act (UPA) provides that “a man who . . . consents to assisted reproduction by a woman . . . with the intent to be the parent of her child, is a parent of the resulting child” (Uniform Parentage Act, 2002). The UPA recognizes intended parents regardless of their marital status and has been adopted in 11 states (i.e., Alabama, Delaware, Illinois, Maine, New Mexico, North Dakota, Oklahoma, Texas, Utah, Washington, Wyoming) (Uniform Law Commission, 2016). This represents an advancement over the prior version of the relevant section of the UPA, which assumed different-sex parents and required the parents to be married. That version was adopted by approximately 20 states (Polikoff, 2016). Post- Obergefell, the gender-specific provisions should be susceptible to an equal protection challenge. As noted previously, a handful of states and the District of Columbia have adopted versions of the ART parentage presumption that are not restricted by either marriage or gender.
The Limitations of Obergefell
There is no question that Obergefell is a landmark civil rights case. The importance of securing equal access to marriage and divorce for same-sex couples cannot be overstated. Obergefell also would seem to favorably impact parental rights that are tied to marriage. However, the absence of broad-based antidiscrimination protections for LGBT people at the federal level and in many states means that marriage equality is, at best, only a partial victory when a same-sex couple can be “married on Sunday and fired on Monday” (Robinson, 2014). Commentators have consistently warned that marriage equality would further marginalize LGBT individuals who chose not to marry and would roll back some of the gains that had been made in the legal recognition of functional family structures, which are relationships that function like biological families or families of origin. Moreover, marriage equality ignited a swift backlash in which some states have enacted broad religious exemptions laws that are designed to insulate those who disagree with marriage equality on religious or moral grounds.
This section addresses some of the potential limitations of marriage equality. It starts by addressing the concern that marriage equality will harm or derail the movement to recognize alternative family forms. The premise is that courts, legislatures, and private employers will view advances such as second-parent (p. 22) adoption or domestic partner benefits as stop-gap measures that are no longer needed post-Obergefell. This section then turns to the explosion of religious exemption laws that hold harmless individuals and entities that refuse to recognize same-sex marriages or refuse to provide goods and services to LGBT people.
Nonmarital Recognition and Functional Families
Despite many advances, the law continues to privilege family relationships defined by biology, marriage, and adoption. The narrow definition of family has long disadvantaged same-sex couples and their families. It also disadvantages the LGBT community more generally because of the important role that “chosen family” has historically played in the lives of LGBT individuals (Weston, 1997). Without legal recognition, a partner, child, or friend is considered a legal stranger who has no legal standing, rights, or responsibilities. The absence of a legally recognized relationship can have significant bearing in cases of relationship dissolution, employee benefits, parenting decisions, second-parent adoption, custody, visitation, inheritance, and healthcare decision-making. If individuals who are considered legal strangers want to secure their relationship, they must rely on private contract, beneficiary designations, dependent classifications, and, at times, the goodwill of legally recognized family members.
Since the 1980s, the law has developed a number of mechanisms to alleviate some of the legal challenges faced by chosen family members, especially same-sex couples. For example, states and municipalities created various levels of recognition for same-sex couples, ranging from the limited grant of domestic partner employee benefits to statutory schemes that extended all the rights and obligations of marriage. These forms of nonmarital recognition have been called different names, including domestic partnerships, reciprocal beneficiaries, and civil unions. Private employers also extended domestic partner benefits to their employees in same-sex relationships.
Some jurisdictions provided protections for de facto family structures with respect to both partners and parents. These reforms were often only secured through the courts after protracted litigation. LGBT litigants argued that the question of who counts as family should be approached from a functional rather than a definitional stance that relied on marriage or biological ties. Receptive courts disaggregated the characteristics of what constitutes a family and asked whether the parties behaved as if they were a family. Courts also applied equitable principles of fairness and reliance. The result was a growing body of case law, as well as statutory provisions, that recognized functional or chosen family.
Commentators have feared that marriage equality would stop the momentum toward greater recognition of chosen family and perhaps reverse some of the gains that had been made (Polikoff, 2016). The reasons for the concern over chosen family are twofold. First, marriage has never been a universally shared goal within the LGBTQ community (Ettlebrick, 1989). Some same-sex couples may (p. 23) prefer to forge alternative family forms or opt for legally recognized nonmarital relationships (Chauncey, 2004). Second, many LGBT individuals rely heavily on chosen family for support. Historically, LGBT individuals created chosen families because so many LGBT individuals were estranged from their next of kin and denied the ability to form their own families through marriage and legal parenting (Goldberg, 2010). It is possible that younger generations will not rely as heavily on chosen family structures given marriage equality and reduced stigma, but chosen family continues to play a central role in the lives of many older LGBT adults (Knauer, 2016b).
It remains to be seen whether marriage equality will ultimately result in the conservative turn that commentators have feared. At a minimum, it seems that some measures that were designed to compensate for the inability of same-sex couples to marry will disappear or become less common. Many jurisdictions have discontinued nonmarital recognition, and many private employers have stopped offering domestic partnership benefits for employees in nonmarital same-sex relationships, but not all (Bernard, 2015). Jurisdictions where the nonmarital status was also available to different-sex partners as an alternative to marriage have been more likely to continue the nonmarital status after marriage equality. For example, California and the District of Columbia have maintained their domestic partnership statuses for both same-sex and different-sex couples, even though DC began recognizing same-sex marriage in 2009 and California in 2013. On the other hand, when same-sex marriage came to Connecticut, the state terminated its civil unions and converted civil unions into marriages.
It is possible that by placing so much emphasis on marriage, not marrying will be interpreted as a negative reflection on the strength or seriousness of the relationship. Same-sex couples may feel pressure to marry in order to secure both legal protections and social approval. In this way, marriage equality may limit or corral individual choice and the creation of innovative relationship forms. The prevalence of marriage could then serve to further marginalize those who reject marriage or rely on chosen family for support and kinship.
Some of the broader advancements in the recognition of chosen family seem likely to continue, especially in light of certain demographic changes that have the potential to expand both the concept and the importance of chosen family beyond the LGBT community. For example, 20% of women are now choosing not to have children (Angier, 2013). Many people are delaying marriage or are choosing not to marry, so much so that the proportion of households in the United States that revolve around a marriage has declined significantly since the 1970s. Multiple marriages and blended families are creating new configurations of family life comprising multiple in-laws, stepparents, and former spouses. These new and emerging family formations will produce nontraditional family ties that will increasingly demand legal recognition. For example, 24 states have added the category of “close friend” to the list of individuals who are competent to make medical decisions on behalf of an individual who is incapacitated (Knauer, (p. 24) 2016b). Colorado enacted the Designated Beneficiary Agreement Act in 2009, which allows individuals to designate who is entitled to certain property rights and who is granted certain decision-making authority, including making funeral arrangements, receiving death benefits, and inheriting property without a will (Colorado, 2015). Under the statute, individuals can designate different people and the designations do not have to be reciprocal.
With respect to parenting, it seems unlikely that marriage equality will disrupt the reforms that have successfully disentangled parental rights from marriage (NeJaime, 2016). These reforms were designed to protect the best interest of the child, rather than to provide nonmarital recognition for same-sex couples. The same should be true of advancements that separated parental rights from biological ties, such as the liberalization of adoption rules and the recognition of intended parents. Same-sex couples were able to use these reforms to help build their families, but they were never designed solely to compensate for the lack of marriage equality. The remaining question is whether Obergefell will help remove the lingering barriers to equal parental rights for parents in a same-sex relationship and all LGBT parents more broadly.
Religious exemption laws represent the latest chapter in the struggle for LGBT rights. By the time the US Supreme Court affirmed a fundamental right to same-sex marriage in Obergefell, religious marriage exemption laws were either pending or had been enacted in eleven state legislatures and the US Congress (Knauer 2016a). Religious marriage exemption laws specially target same-sex marriage and provide a blanket exemption for individuals and entities that refuse to recognize or otherwise facilitate a same-sex marriage due to religious or moral objections. The laws generally allow individuals and entities to refuse to provide goods and services to same-sex couples, their families, and LGBT individuals more broadly. They purport to protect the free exercise of religion guaranteed under the First Amendment of the US Constitution by elevating anti-LGBT discrimination to the level of state-protected religious liberty.
These targeted marriage exemption laws augment the Religious Freedom and Restoration Acts (RFRAs) that are already in place in 21 states and on the federal level (Knauer 2016a). The RFRAs provide broad protections for free exercise that are not limited to a particular topic or area of religious belief, such as same-sex marriage. Under a RFRA, an aggrieved party can challenge a government action by showing that it substantially burdened her free exercise rights. The burden then shifts to the government to establish that the burden is justified by a compelling or sufficient state interest and the means to achieve that interest is narrowly tailored. In recent years, states have adopted increasingly broad RFRAs that are specifically designed to protect and even promote discrimination against LGBT individuals.
(p. 25) Religious marriage exemptions provide a greater level of protection for anti-LGBT bias than RFRAs because they provide a blanket exemption for individuals and entities that violate the law by refusing to recognize or otherwise facilitate a same-sex marriage due to religious or moral objections. Unlike with a RFRA, there is no requirement to show that the government action substantially burdens free exercise rights nor is the government given the opportunity to justify the action. For example, the proposed First Amendment Defense Act (FADA) would prohibit the federal government from taking any “discriminatory action” against a person on the basis of “a religious belief or moral conviction” that marriage is solely the “union of one man and one woman” (First Amendment Defense Act, 2015). There are no further requirements.
In many instances, religious marriage exemption laws or RFRAs are not actually necessary to protect those who want to discriminate against LGBT people for religious reasons or for any other reasons. This is because LGBT individuals are not expressly covered by antidiscrimination protections in the majority of states or at the federal level (Human Rights Campaign, 2016a), with the exception of employees of federal contractors, who are protected by executive order from discrimination on the basis of sexual orientation and gender identity (Executive Order 13672, 2014). Accordingly, individuals and entities in those jurisdictions are already free to discriminate against LGBT individuals. However, the marriage exemptions and expanded RFRAs do send a strong signal about the nature of LGBT rights and the unwillingness of some segments of society to accept gains that have been made with respect to marriage equality. They are similar in this regard to the marriage prohibitions that were adopted in the 1990s long before Massachusetts became the first state to issue same-sex marriage licenses in 2004. Like the marriage prohibitions, religious marriage exemptions and newly expanded RFRAs are designed to preserve bastions of anti-LGBT bias against a rising tide of equality and acceptance.
If religious marriage exemptions are widely adopted, it is easy to see how they have the potential to render Obergefell a partial if not hollow victory. Individuals and entities would not be bound to respect the hard-fought right to marry if it were contrary to their religious belief or moral conviction. These laws could have consequences far beyond whether a florist or a baker who refuses to provide services for a same-sex wedding. Religious exemption laws are designed to ensure that LGBT rights end where a religious or moral conviction begins. They empower individuals and entities to opt out of marriage equality and to express their disapproval of LGBT individuals.
This disapproval could take a multitude of forms. With respect to same-sex marriage, an employer could refuse to provide spousal benefits to same-sex spouses. An insurance agent could refuse to sell insurance to same-sex married couples. A doctor or nurse could refuse to talk to a patient’s same-sex spouse because to do so would recognize the marriage. Funeral homes could refuse to provide services for individuals who were in same-sex marriages. Cemeteries (p. 26) could refuse to bury same-sex spouses. Disapproval of same-sex marriage could also manifest in ways that impact unmarried sexual minorities. Same-sex dating could be banned at schools, and restaurants could refuse to seat same-sex couples.
On the parenting front, the most obvious example is the refusal of religiously affiliated adoption and foster care agencies to deal with same-sex couples. In 2015, a pediatrician in Michigan refused to treat a child who had same-sex parents on religious grounds (Phillip, 2015). Presumably, teachers could also refuse to recognize a student’s same-sex parents. Day care providers could raise similar objections, as could coordinators of other youth services, such as youth sports leagues. Parent-teacher associations (PTAs) could refuse to admit same-sex parents on religious and moral grounds. The manager at a Chuckie Cheese could refuse to host a birthday party for a child with same-sex parents. The extent to which these laws could negatively impact children being raised by same-sex parents directly contradicts Justice Kennedy’s edict in Obergefell that children with same-sex parents should no longer be “relegated to a more difficult and uncertain family life” (Obergefell, 2015, p. 2590).
Marriage exemptions laws and expanded RFRA protections have been roundly condemned by LGBT advocates and their allies, including CEOs of major corporations who contend that discrimination against LGBT individuals is not good business. Shortly before the Court issued its decision in Obergefell, Indiana enacted RFRA legislation in March 2015 amid considerable controversy regarding the effect the law could have on LGBT individuals (Bazelon, 2015). LGBT rights advocates and corporate leaders denounced the law as a thinly veiled license to discriminate against LGBT people. Facing increasing pressure from economic interests and boycotts, the Indiana legislature amended the law the following month to clarify that its purpose was not to discriminate on the basis of sexual orientation or gender identity.
As legislatures consider these bills, it is important to raise public awareness as to the true nature of these religious exemptions. Religious belief does not empower individuals to pick and choose among civil rights protections. When the targeted religious marriage exemptions are challenged in court, there is a strong argument that they violate the Establishment Clause of the First Amendment because they carve out a single religious belief for special treatment. Claims that an RFRA entitles an individual or entity to violate any applicable antidiscrimination protections by withholding goods or services to LGBT people should also fail, but only in jurisdictions where antidiscrimination protections are already in place. The continued lack of antidiscrimination protections for LGBT people represents an area that must be addressed post-Obergefell. Regardless of religious exemptions, the promise of Obergefell will remain unfulfilled so long as same-sex spouses can be fired from their jobs and they and their children can be denied basic goods and services.
(p. 27) Discussion Questions
1. Prior to Obergefell, same-sex couples had to navigate an increasingly complex patchwork of state and federal marriage laws. What are some of the ways that this lack of uniformity in relationship recognition impacted same-sex couples and their families?
2. Obergefell mandated nationwide access to marriage and divorce, but it left many questions related to parental rights unanswered. How might the principles enunciated in Obergefell be used to argue to remove the remaining legal disparities facing same-sex parents?
3. How would you explain the continued need for second-parent adoption to a nonbiological mom who is married to the child’s biological mother? Why is the marital presumption of parentage not sufficient to protect both the parents and the child? How would you address the emotional aspects of being required to adopt your own child?
4. Marriage equality provides a way to formalize one’s relationship with one’s same-sex partner, but it does not provide legal recognition for other chosen families members. What are some ways that the law could embrace nontraditional family structures? Do you think that chosen family will be less important in the LGBT community after Obergefell?
5. The call for religious exemptions intensified after Obergefell. Do you agree that LGBT rights and religious liberties are necessarily in conflict? Do you believe that a pediatrician should be able to refuse to treat a child with same-sex parents? Legally? Morally? What about as a matter of professional ethics?
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