Gay Parenting in the Post-Obergefell World

Like most same-sex couples raising children, April DeBoer and Jayne Rowse, wanted to secure as many legal protections as possible for their children to fill the void that their state’s marriage ban created. And, like many same-sex couples across the country they sought a second-parent adoption—a common practice in over half the states that would permit both women to be legally recognized as parents to their children despite their marital status. But unlike many same-sex couples DeBoer and Rowse were not permitted to second-parent adopt each other’s child. In 2002, Michigan had bucked a nationwide trend legitimizing same-sex couples’ co-parenting status when Michigan Supreme Court Chief Justice Maura Corrigan forced the Chief Judge of Washtenaw County (the primary source of the state’s second-parent adoptions) to end the practice. When the juvenile court judge responsible for granting these adoptions refused, the chief judge took over all adoptions. Initially, DeBoer and Rowse set their sights on reversing this edict, but they quickly realized that the only way forward was to remove Michigan’s marriage ban altogether.

So, that’s what they did. After a multitude of high profile court hearings in which not only their skills, but the parenting capacity of all gay and lesbian couples were poked, prodded and dissected, the two women (along with plaintiffs from three other states) convinced five Supreme Court justices to overturn the bans—not just in Michigan, but across the nation. Now, as Justice Kennedy remarked in his landmark opinion in Obergefell v. Hodges, the children of same-sex couples would no longer be “relegated to a more difficult and uncertain family life.”

It is against this backdrop—the struggles of lesbian and gay parents—that marriage equality emerged. And yet, ironically, it is unclear exactly how relevant the Court’s decision will be for lesbians and gays raising children. Despite the significance of the ruling (and it is truly remarkable) it remains to be seen just how much more “certain” family life will be for lesbian and gay parents and their children in a post-Obergefell world.

For one, as DeBoer and Rowse’s story suggests, one (likely unexpected, but nevertheless direct) consequence of the right’s zeal to limit marriage to heterosexual couples was to force family court judges to find some way to protect the children of lesbian and gay parents who were being raised in a world without marriage. Family court judges—aided by decades of precedent shaped from cases involving unmarried or divorcing heterosexual parents—found ways to legally recognize lesbians and gays jointly raising children as co-parents without requiring any inquiry into their marital status. As one advocate explains, in these cases “it is about the child…That’s where it is different [from marriage]. The relationship between the parents is irrelevant. It is ignored.” In other words, because gays and lesbians had been denied their marital rights and left to parent in a world without marriage, family court judges had to create legal mechanisms that legitimized one’s parenting claims separate from their marital status.

Now, as those states that have yet to welcome gays and lesbians into the marital fold stand at the ready to issue licenses to same-sex couples, one has to wonder whether the chasm between marriage and parenting will persist. Will state officials or others charged with regulating America’s families read the Court’s decision as a narrow mandate to issue and recognize marriage licenses or as a broader invocation to extend to same-sex couples the privileges and presumptions of parenthood that have long accompanied heterosexual marriage? When gay and lesbian parents set out to both claim and exercise their parenting status they may be further challenged by vital records clerks, reproductive regulations or hospital or school administrators who are either unwilling or ill-equipped to recognize gays and lesbians as parents.

There is a host of ways in which gay and lesbian parents may be granted the legal condition of marriage while still being degraded by the vestiges of marriage inequality. States could continue to deny lesbian and gay parents the legal protections of parenthood despite their marital status. The same conditions of judicial autonomy and authority that aided gay rights advocates in their efforts to legally protect children raised in same-sex households despite marriage bans can similarly provide ample opportunity for anti-gay sentiments to wreck havoc on Kennedy’s mandate. In 2012, for instance, a family court judge in New York, shortly after the state legalized marriage for gay and lesbian couples, denied a lesbian mother standing to seek joint-custody of her son after she and her wife separated. Because the two were not married at the time of their son’s birth (no law would permit them to do so) the non-biological parent was left with no legal connection to her son, even after their marriage was legalized. The judge admitted that if the co-parent “were a man in the same position, the law might point toward a different ruling.”

States may also establish mechanisms for administering or disseminating vital records that rest not on one’s marital status but on the parent’s gender. In 1997, for instance, Texas modified its family code provisions to require any supplemental birth certificate (those issued to adoptive parents) to include only one mother and one father in order to continue the state’s “commitment to conservative values.” The provision remains despite attempts to remove it. Same-sex couples in Iowa, Indiana, and Pennsylvania have faced (and have litigated) similar restrictions on their ability to be co-listed as parents on vital records despite being legally married in their states. Same-sex marriage, explained a registrar in Indiana, “doesn’t really change the way a birth record is done, because birth certificates all have to do with biological parents.”

States can impose legal restrictions on artificial reproductive technologies that disadvantage same-sex couples. For instance, states may use gendered language to determine who will be recognized as the parent when surrogates or donors are used to conceive. Alabama law, for instance, stipulates “any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing.” They similarly identify only “the biological father and the woman intended to be the mother” as the legal parents of a child born through surrogacy. This is especially problematic for two-dad families whose primary method for having children is through gestational surrogacy.

But there are also a multitude of ways in which ordinary citizens–be they at schools, in hospitals, at day care facilities, or in any number of agencies that interface regularly with individuals attempting to carry out their parental duties, can drastically alter the context of parenting for lesbians and gays raising children. These de facto injuries—those emanating not from state imposed restrictions but from everyday interactions with private actors—may be even more difficult to predict or mete out. Pam Yorksmith recently experienced one extreme form of discrimination when her infant son was rushed to a Cincinnati hospital, coughing and struggling to take full breaths. In her rush to help her son she neglected to bring the birth certificate that listed both her and her wife (their son’s biological mother) as co-parents. When she arrived at the hospital, staff informed her that because they could not verify her parental status she could not make any medical decisions on behalf of her son. They waited for over an hour for their son to receive care while staff attempted to locate the biological mother who was at home caring for their other child. Despite being legally married in the state—and having proof of parentage—this mother and her son were subjected not only to humiliating but potentially life threatening treatment from hospital administrators.

So, while we should give this moment its due respect—just as we should any victory that rights a deplorable wrong—we should not, cannot, see Obergefell as something more than it is—a significant milestone along a lengthy and continuing path to full familial equality for gay and lesbian parents. The rest is up to us.

Alison Gash

Alison Gash is the author of Below the Radar: How Silence Can Save Civil Rights (Oxford University Press, 2015). Her work on LGBTQ rights has also appeared in Politico, Newsweek, Slate, Huffington Post and The Conversation. She is an Associate Professor of Political Science at University of Oregon. Views expressed are solely her own and are not meant to represent those of the University of Oregon.