This is the first of two articles on the effects of the recent U.S. Supreme Court ruling on same-sex marriage.
On June 26, 2015, the Supreme Court of the United States (SCOTUS) made a historical decision in the case of Obergefell v. Hodges, ruling that state laws prohibiting same-sex marriage are unconstitutional. This decision, which has implications for the work we do in Family Development, is not the first time that the definition of marriage has changed, nor is it the first change that took a long time (this movement in the U.S. began in earnest several decades ago). Many people once considered interracial and interfaith marriage unthinkable, and interracial marriage was once illegal in a number of states. Public opinion on same-sex marriage has seen decades of slow progress, with majority approval in the United States only reached within the past five years. For context, we include data from a Gallup poll on public opinion from 1996–2014:
By changing who can marry whom, Obergefell v. Hodges expands the definition of what we call a family, and thus extends the benefits of legally recognized marriage to sexual and gender minority (SGM) couples. Frequently cited benefits of a legally recognized marriage are financial or related to aging. Tax breaks, health insurance, health care directives, and property rights are some of the overt ways we see married couples benefit from their legal union. In addition to these commonly cited advantages, the SCOTUS decision means SGM families will experience other, less-noted benefits that can have a dramatic impact on the family system, including adoption, presumption of parentage, caregiver rights, interstate migration and relocation, and divorce and separation. All of these issues touch on the work FD staff and educators do with families to greater or lesser degrees. Let’s look at these issues in more detail.
What nationwide same-sex marriage will mean for adoption by SGM couples is still being debated, and the expansion of adoption rights to same-sex married couples in all states may take time. In some states, the same-sex partner or spouse of a biological parent was allowed to adopt a child born in the union. This was an expensive and invasive procedure called “second parent adoption.” It afforded legal protections to both parents and ensured they were both recognized as legal parents, important factors that affect the child’s well-being especially in school situations, medical emergencies, and financial matters. However, these rights were often questioned or lost when parents crossed state lines, and were not available in many states.
Presumption of Parentage
There is a long-established legal and statutory principle of the presumption of parentage for both parents when a married couple has a child. That is, a married man is presumed to be the biological parent of the children his wife bears, unless there is a specific challenge, such as a known other biological father. With same-sex marriage, the same presumption of parentage should be given to SGM couples as to heterosexual couples. With an extension of the presumption of parentage, in many cases it should be no longer necessary for non-biological parents to “adopt” children born within the marital union. Policies for SGM couples who want to jointly adopt children, or support foster children vary substantially between states, but will likely converge towards equality in the coming years, following principles such as the presumption of parentage.
In SGM families, the non-biological (or non-adoptive) parent had fewer caregiving rights before the recent SCOTUS ruling, unless they had engaged in a second parent adoption, or came from a state with an existing presumption of parentage, or other extension of caregiving rights to a person acting in loco parentis (in the place of a parent). Thus, persons in a same-sex union in some states, who fully acted and lived in families as parents to children of the family, could have no legal caregiving rights at all, and no ability to even seek such rights under state law.
With the nationwide extension of the right to marry, SGM families should find that they have the same rights under state law as heterosexual married couples, with regard to children born to the marital union, adopted children, and step-children. This extension of legal rights is both mundane and profound, ranging from seeking medical care to enrolling a child in school to taking a child through airport security. This expansion of caregiving rights not only affects family members’ interactions with the outside world, but also influences interactions within the family system — there is more consistency between how persons acting as parents in the family are treated as parents in the world outside the family.
Migration and Relocation
The SCOTUS ruling is expected to have an impact on SGM families’ migration and relocation patterns. Before the ruling, many SGM persons were more likely to migrate to cities and states with relatively more protections. Changes in attitudes toward SGM individuals have occurred faster in states where communities of SGM persons are relatively more affluent, educated, and white (e.g., coastal cities and the Northeast) than other regions of the U.S. where SGM persons report less social privilege (Eckholm, 2015). The ruling erases differences between states with respect to marriage, which could act to slow the interstate migration of SGM families. On the other hand, long-held prejudices against gay, lesbian, bisexual, and transgender persons may continue to drive some SGM families to move to states perceived as more friendly — so some migration between states may continue.
The ruling also might play a role in changing migration patterns of SGM families within states. Traditionally, small towns and rural areas have been less accepting of same-sex couples, and SGM families have migrated to — or been unwilling to leave — larger cities. However, changing attitudes based on new marriage laws might help SGM families feel more willing to live in small towns and rural areas.
Divorce and Separation
One often-overlooked right of legally recognized marriage is the right to divorce or separate with the help of the legal system. In many cases before the SCOTUS ruling, SGM parents who no longer wanted to live together did not always have recourse under state family law systems to assert rights regarding their children (generally children with whom they had no settled legal relationship) that divorced and separated heterosexual parents already had. With the Supreme Court ruling, divorcing and separating SGM parents have the right to custody determinations, as well as support from family law programs that help families through this difficult process.
On the Horizon
When a child is born, a family redefines itself in order to include this new member. Before Obergefell v. Hodges, SGM parents faced the same challenges as heterosexual parents in redefining themselves and adapting to new roles and rules after the birth of a child. However, SGM parents faced additional challenges, even in states that had already extended marriage equality to SGM parents, due to lack of recognition of marital and parental status in all states, and under federal law in some instances. Now SGM parents have recognition of their status in all 50 states, and under federal law, and thus now a legal equal status for the tasks of parenting.
While marriage equality has been a major advance in the rights of SGM persons to live in families and raise children, SGM individuals still face challenges in other areas of life. Housing and employment discrimination on the basis of sexual orientation or gender identity is still permitted in some states. Social and health disparities continue to exist, such as higher rates of poverty, suicide, homelessness, and mental health problems in SGM persons, as well as higher rates of HIV among male and trans SGM persons. Violence against SGM persons continues to be higher than that against many other disadvantaged groups. Transgender persons in particular are among the individuals most likely to be murdered worldwide, including in the U.S.
The SCOTUS ruling opens new doors to SGM parents as they face the joys and struggles of raising children, and provides hope that the other forms of social inequity against SGM persons will continue to lessen. Our job as Family Development staff and educators is to give SGM persons the same level of assistance we give all parents as they adapt to new roles and rules.
Eckholm, E. (2015, June 27). Next fight for gay rights: Bias in jobs and housing. New York Times.
McCarthy, J. (2014, May 21). Same-sex marriage support reaches new high at 55%. Gallup.