It can be difficult to imagine today, but in 2015 when Obergefell v. Hodges was decided, it seemed to many people that LGBTQ equality was nearly won, at least as to family law. Some employers, courts, and state legislatures even rolled back programs or protections for LGBTQ couples on the logic that those couples could marry and no longer needed things like domestic partnerships that replaced some of the legal benefits of marriage. Such optimism as to the impact of marriage equality was unfounded, of course, and in today’s political climate seems laughably naive. Marriage equality did not signal victory of LGBTQ equality generally, nor did it even eliminate different legal treatment of LGBTQ families, as Susan Hazeldean incisively demonstrates in Illegitimate Parents. Professor Hazeldean provides a comprehensive explanation of one of the starkest differences remaining in family law: unmarried same-sex couples are not recognized as legal parents in many circumstances where unmarried different-sex couples are.
As Hazeldean traces in her article, post-Obergefell optimism even convinced many judges. One particularly pointed example Hazeldean provides is a Kentucky court of appeal judge, who argued that choosing not to marry should be understood as effectively waiving parentage claims even to a child that the unmarried partner raised from birth. (P. 1599.) But as Hazeldean shows with a fifty-state survey of parentage laws, states vary wildly in how much protection they give parental relationships linking both members of unmarried same-sex couples and their children. In most states, Hazeldean points out, marriage is the only way for both members of the couple to establish a legal parent/child relationship.
One of the key contributions of Hazeldean’s article is her fifty-state survey, and she explains her data in impressively readable, accessible fashion. The comprehensive table appears as a nearly forty-page appendix that will undoubtedly be an immense resource for legal scholars, and in the body of the article she breaks down her data in two helpful ways. First, she divides states into three categories: states that provide robust protection for unmarried same-sex parents, states that are hostile and provide no protection to non-biological parents in unmarried same-sex couples, and the largest group, states with partial or uncertain protection. She provides a map showing what category each state falls into, which gives an immediate quick impression as well as a few surprises – Michigan, for example, is in the “no protection” category, which seems at odds with its recent progressive legislative agenda. (P. 1603.) One can easily imagine this page of Hazeldean’s article being circulated in state legislators’ offices.
In addition to the broad categories, Hazeldean outlines several specific ways that the parentage rights of unmarried same-sex couples can be recognized. She traces the availability of joint adoption for unmarried same-sex couples, the availability of second-parent adoptions, parentage rights coming from gestational surrogacy, parentage rights for children conceived through assisted reproductive technologies (ART), use of Voluntary Acknowledgments of Parentage (VAPs) for same-sex couples, and the application of functional parentage doctrines, concisely explaining and providing similar maps for each. Given the complexity of answering and explaining the broad question “what are the parentage rights of unmarried same-sex couples,” the work to organize all of this data and analysis seems herculean, yet Hazeldean not only amassed the data necessary to answer but explains it in graphical form that non-lawyers can likely understand.
Following this outline of the lay of the land, Hazeldean discusses possible legal claims to challenge the differential treatment of unmarried same-sex versus different-sex partners as unconstitutional under the federal constitution. While her arguments are excellent, in many ways this analysis seems irrelevant for the moment. As she acknowledges, given the current makeup of the Supreme Court and federal judiciary post-Trump, it is incredibly unlikely that such arguments would be successful in federal court. (P. 1672.) At best, lawyers might repeat some of the early steps of the campaign for marriage equality by bringing similar claims under state constitutions in more progressive areas. Her discussion of legislative reform seems more likely to actually happen in the foreseeable future – not her suggestion of congressional action, about which I am even more pessimistic than Supreme Court victory, but rather her proposal that individual state legislatures reform their unequal statutes. Given how clearly Hazeldean has broken down the specific failings and steps to ameliorate them, her article could be used as a checklist by enterprising legislators.
Hazeldean’s article is relevant far beyond practical reform, however. She performs an interesting rhetorical roundabout regarding Obergefell. The earlier parts of the article stress how Obergefell’s narrow, Kennedy-centric logic about dignity failed to have broader relevance even within family law, and in fact may have made the legal treatment of unmarried people worse. It is striking how many of the laws and cases that Hazeldean cites to illustrate the treatment of unmarried same-sex parents precede Obergefell, implicitly highlighting how the case’s impact was cabined so tightly to the ability to marry. By the close of the article, however, Obergefell seems like a more useful case not as precedent, but as strategy. The multipronged campaign inching toward marriage equality until suddenly it seemed inevitable could be used as a model for more equal recognition of parentage.
There are also interesting intersections between Hazeldean’s focus on the nonbiological unmarried same-sex parent and other would-be rightsholders in parentage law. First are the potential claims of the children of such parents, which Hazeldean does not discuss since her argument focuses on the unequal treatment of parents according to sexual orientation. A claim brought on behalf of a child would likely be an uphill battle, since the Supreme Court has explicitly called such claims even weaker than those brought by a potential parent.1 As a rhetorical and political matter, however, it is a very strong argument to point out how such children are harmed by a state’s refusal to recognize one of their parents. As Hazeldean notes, focusing on the impact on children did sway some courts during marriage litigation, including Justice Kennedy in United States v. Windsor.2
Second, and perhaps even further afield from Hazeldean’s focus, the legal treatment of unmarried same-sex parents raises broader questions about how legal parentage is defined for all parents. As she points out, in almost all circumstances one member of a same-sex partnership is not biologically related to their child and is thus in a weaker legal position. (P. 1587.) A natural question is why biological or genetic relationships remain so central, even in contexts where we know only one parent (if any) will have such a link? The status of unmarried same-sex parents resembles in some ways the legal treatment of unmarried biological fathers, whose paths to secure legal parentage are often marriage, functional theories of parentage, or VAPs (which Hazeldean points out are not typically available to same-sex partners). By highlighting the injustice of overreliance on genetics and the promise of other theories of parenthood, such as consent manifested in a VAP or functional parentage by doing the work of raising a child, Hazeldean’s logic points to more wholesale reform of how the law identifies parents for everyone. When marriage is increasingly a relationship status for wealthy and white people, why should it remain so dispositive for establishing parentage? The risk of a fifty-state survey can be that the survey becomes outdated as time passes, but because Hazeldean’s work speaks so directly to these broader issues, it seems likely that her article will be incredibly useful for years to come.
- Michael H. v. Gerald D., 491 U.S. 110, 130 (1989).
- United States v. Windsor, 570 U.S. 744 (2013).
