Marriage Equality Fails to Protect LGBT Families

As 2019 draws to a close, and with it the end of a decade filled with historic victories in the gay rights movement – including the federal recognition of same-sex marriage as a constitutional right – it is understandable that some believe the fight for gay rights is over[i]. In the wake of the marriage equality decision, a number of LGBT advocacy groups like the Empire State Pride Agenda and The American Foundation for Equal Rights shut their doors after decades of fighting[ii], declaring their work complete[iii]. Marriage equality is a significant achievement, but the fight for equality is far from over. Same-sex couples may have the right to marry the person they love and have that marriage recognized in all 50 states, but their right to have children and have their parental rights equally recognized is far from secure.

While marriage equality was decided at the federal level, the laws that define the relationships between parents and children are still governed by the states. Almost five years after the Obergefell v. Hodges decision, same-sex couples still have to rely on a patchwork of state laws to determine their legal standing as parents. Today, 29% of LGBT Americans are raising children[iv], but only 11 states currently recognize the parental rights of non-gestational parents[v] regardless of marital status. A handful more recognize non-biological parents as legal parents if the couple is married[vi], but that recognition often comes under scrutiny when a couple separates or moves across state lines unless a second-parent adoption has been performed[vii].

Requiring same-sex couples to not only be married, but then to pay for a second-parent adoption in order for the rights of non-biological parents to be recognized belies the belief that the fight for gay rights ended with marriage equality. Not only is the fight not over, but same-sex marriages are still missing a key element guaranteed to all opposite-sex marriages nationwide: presumption of parentage. Presumption of parentage – or marital presumption of legitimacy – is the “legal shortcut” used to determine the parents of a child[viii]. This presumption is traditionally applied to a man whose wife gives birth. Since the couple is married, the law presumes the woman’s husband is the child’s father and views both parties as the child’s legal parents[ix]. While marital presumption exists across the country, the specific nuances vary from state to state. In order for the promise of marriage equality issued by the Supreme Court to truly be fulfilled, all married couples must be protected by the same standard of marital presumption, and that standard must be recognized in all 50 states.

Although marriage is not a prerequisite for two people to have a child, it was a requirement if the couple wanted that child to be seen as legitimate in the eyes of the law before 1973[x]. Before the implementation of modern social policies, marriage was the standard used to establish legitimacy, necessary for determining financial support for children and inheritance[xi]. In the early 1970s, a number of Supreme Court decisions found this standard and the laws based upon it to be unconstitutional and discriminatory against the children of unmarried parents[xii].  To support states in updating their laws accordingly, the Uniform Law Commission drafted the Uniform Parentage Act (UPA)[xiii], a piece of legislation that provides a consistent framework for states to establish equity for all children and eliminate the status of illegitimacy[xiv]. In 1973, the UPA was adopted by all states[xv].

Since then, the UPA has been updated twice – once in 2002, and again in 2017 after the marriage equality decision to remove gender distinctions and ensure the children of same-sex couples are equally protected[xvi]. Although the updated UPA provides uniform marital presumption to all married couples regardless of gender, the adoption of this state-level legislation is stagnant. To date, only California, Vermont, and Washington have enacted the new law. Additionally, it has been introduced in Pennsylvania, Connecticut, Rhode Island, and Massachusetts[xvii]. While adopting the UPA would be the most straightforward way for states to update their marital presumption laws, some states are choosing to settle the issue through their own state courts, like New York[xviii] and Hawaii[xix].

In order to ensure the equal protection of all families, states must adopt the updated UPA. Until they do, same-sex couples will have to continue fighting for the equal recognition of their marriages and the full “constellation of benefits[xx]” afforded to them by the Supreme Court in their 2015 ruling. The longer states wait to take action, the more vulnerable LGBT families become. The current administration has already demonstrated its bias against same-sex parents by challenging the birthright citizenship of their children born abroad and invalidating their parents’ marriages through changes in immigration policy[xxi]. In this hostile political climate, states must step up to protect and codify the rights of citizens and their families.

[i] Kirchick, James. “The Struggle for Gay Rights Is Over.” The Atlantic, Atlantic Media Company, 2 July 2019, https://www.theatlantic.com/ideas/archive/2019/06/battle-gay-rights-over/592645/.

[ii] “Another LGBT Rights Group to Shut Down.” Washington Blade: Gay News, Politics, LGBT Rights, 5 Aug. 2015, https://www.washingtonblade.com/2015/08/05/another-lgbt-rights-group-to-shut-down/.

[iii] McKinley, Jesse. “Empire State Pride Agenda to Disband, Citing Fulfillment of Its Mission.” The New York Times, The New York Times, 13 Dec. 2015, https://www.nytimes.com/2015/12/13/nyregion/empire-state-pride-agenda-to-disband-citing-fulfillment-of-its-mission.html.

[iv] The Williams Institute at UCLA School of Law. “LGBT Data & Demographics.” The Williams Institute, 2017, https://williamsinstitute.law.ucla.edu/visualization/lgbt-stats/?topic=LGBT#demographic.

[v] Movement Advancement Project. "Equality Maps: Other Parental Recognition Laws." http://www.lgbtmap.org/equality-maps/other_parenting_laws (12/15/2019).

[vi] Ibid.

[vii] Miller, Matt. “Woman Can't Have Custody of Former Same-Sex Partner's Biological Son, Pa. Supreme Court Rules.” PennLive, 22 Sept. 2018, https://www.pennlive.com/news/2018/09/woman_cant_have_custody_of_for.html.

[viii] Vedder, James J., and Brittney M. Miller. “Presumptions in Paternity Cases: Who Is the Father in the Eyes of the Law?” Family Advocate, vol. 40, no. 4, 2018.

[ix] Bewkes, Frank J. “Unequal Application of the Marital Presumption of Parentage for Same-Sex Parents.” Center for American Progress, 25 Nov. 2019, https://www.americanprogress.org/issues/lgbt/news/2019/11/25/477923/unequal-application-marital-presumption-parentage-sex-parents/.

[x] Joslin, Courtney G., and Sakimura, Cathy. “Uniform Parentage Act (2017): An Overview.” American Bar Association Section of Family Law 2018 Spring CLE Conference, 11 May 2018, Nashville, TN.

[xi] Vedder, James J., and Brittney M. Miller. “Presumptions in Paternity Cases: Who Is the Father in the Eyes of the Law?” Family Advocate, vol. 40, no. 4, 2018.

[xii] Joslin, Courtney G., and Sakimura, Cathy. “Uniform Parentage Act (2017): An Overview.” American Bar Association Section of Family Law 2018 Spring CLE Conference, 11 May 2018, Nashville, TN.

[xiii] Uniform Law Commission. “Uniform Parentage Act (1973).” Parentage Act (1973) - Uniform Law Commission, https://www.uniformlaws.org/committees/community-home?CommunityKey=10720858-ebe1-4e85-a275-40210e3f3f87.

[xiv] Joslin, Courtney G., and Sakimura, Cathy. “Uniform Parentage Act (2017): An Overview.” American Bar Association Section of Family Law 2018 Spring CLE Conference, 11 May 2018, Nashville, TN.

[xv] Heinig, Melissa. “What Is the Legal Definition of a Parent Under the Uniform Parentage Act?” Lawyers.com, 2018, https://www.lawyers.com/legal-info/family-law/paternity/legal-definition-parent-under-uniform-parentage-act.html.

[xvi] Joslin, Courtney G., and Sakimura, Cathy. “Uniform Parentage Act (2017): An Overview.” American Bar Association Section of Family Law 2018 Spring CLE Conference, 11 May 2018, Nashville, TN.

[xvii] Uniform Law Commission. “Uniform Parentage Act (2017).” Parentage Act (2017) - Uniform Law Commission, https://www.uniformlaws.org/committees/community-home?CommunityKey=10720858-ebe1-4e85-a275-40210e3f3f87.

[xviii] Adams, Errol. “'Presumption of Legitimacy' of a Child in Same-Sex Marriages.” Pace Law Library, 6 Feb. 2018, https://lawlibrary.blogs.pace.edu/2018/02/06/presumption-of-legitimacy-of-a-child-same-sex-marriages/.

[xix] Ford, Zack. “Law Recognizes Same-Sex Parents Equally, Regardless of Biology, Hawaii Supreme Court Rules.” ThinkProgress, 10 Oct. 2018, https://thinkprogress.org/hawaii-supreme-court-parental-presumption-same-sex-couples-181e2d799b40/.

[xx] United States, Supreme Court. Obergefell v. Hodges. Supreme Court Reporter, vol. 135, 26 June 2015, pp. 2617.

[xxi] Bixby, Scott. “Trump Administration to LGBT Couples: Your 'Out of Wedlock' Kids Aren't Citizens.” The Daily Beast, The Daily Beast Company, 15 May 2019, https://www.thedailybeast.com/state-department-to-lgbt-married-couples-your-out-of-wedlock-kids-arent-citizens?ref=scroll.