Está en la página 1de 111

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 1 of 12

United States District Court


District of South Carolina
Columbia Division
Katherine Bradacs and Tracy Goodwin,

)
)
Plaintiffs,
)
)
vs.
)
)
Nimrata (Nikki) Randhawa Haley, in her
)
official capacity as Governor of South Carolina, )
and Alan M. Wilson, in his official capacity as )
Attorney General of South Carolina,
)
)
Defendants.
)
______________________________________ )

Civil Action No.: 3:13-cv-02351-JMC

LAWYERS' COMMITTEE FOR CHILDREN'S RIGHTS


MEMORANDUM OF LAW AS AMICUS CURIAE REGARDING THE EFFECTS UPON
CHILDREN OF SOUTH CAROLINAS PROHIBITION ON SAME-SEX MARRIAGE
_______________________________________________________
Identification of Amicus Curiae
The Lawyers Committee for Childrens Rights respectfully submits this memorandum as
amicus curiae on the discriminatory impact of South Carolinas ban on same-sex marriages on
children in those relationships, an issue that will be addressed by this court on plaintiffs motion
for summary judgment, in future motions before the court, and at trial. 1
The Lawyers Committee is a South Carolina non-profit advocacy organization whose
vision is a society in which all children are treated with respect and dignity, as citizens with
legally enforceable rights and remedies, without regard to race, gender, national origin, or
economic status. It seeks the recognition of children as citizens before the law and champions
childrens rights to equal treatment under the law and fundamentally fair legal process.

John S. Nichols, one of the Plaintiffs attorneys in this matter, serves on the board of the
Lawyers Committee for Childrens Rights but did not participate in drafting this memorandum.
-1-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 2 of 12

The organization accomplishes this through, among other things, assistance with
litigation and advocacy of sound public policy and law.
Introduction
[Failure to recognize same-sex marriage] humiliates tens of thousands of children now
being raised by same-sex couples. The law in question makes it even more difficult for
the children to understand the integrity and closeness of their own family and its concord
with other families in their community and in their daily lives. 2
When the state allows adults to marry, it not only grants special benefits to the principals
of that relationship the adults but also to those indirectly involved in the relationship (who
have no choice in their involvement) the children of those adults.
Conversely, when the state refuses to allow same-sex adults to marry or refuses to
acknowledge valid same-sex marriages from other jurisdictions, it deprives the children of their
relationship of the right to those same benefits.
As the issue of marriage equality rages across the legal landscape, the Lawyers
Committee here advances the interest of the most overlooked and vulnerable with a stake in the
outcome of this case. This brief is about the equal rights of South Carolina children and the
onerous consequences the States same-sex marriage ban has for children of same-sex
relationships.
Argument
I.

How These Families Are Formed and How They Fare.


The very human need to have and raise children transcends gender and sexual identity.

Indeed, the concept of the adoption of a child by another was recognized in Hammurabis Code.
Children come to have parents in same-sex partnerships in a variety of ways. A gay
parent may already have a child from a heterosexual relationship, bringing that child into the
2

United States v. Windsor, __ U.S___, 133 S.Ct. 2675, 2694, 186 L.Ed.2d 808 (2013).
-2-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 3 of 12

union the classic step-parent relationship. A gay parent may have adopted the child as a single
parent quite legal in South Carolina despite its prohibition on the recognition of marriage as an
institution for gay couples and brought the child into the relationship. 3 For that matter, South
Carolina law permits one of the two members of the couple to adopt as a single parent, even if
both parents may be prohibited from doing so by South Carolinas ban on recognition.
The emergence of assisted reproductive technologies such as surrogacy, in vitro
fertilization, and gestation has revolutionized the landscape of childbirth and parenthood. 4 These
technologies have assisted gay men as well as women to become parents. 5 In fact, the couple
here challenging South Carolinas ban has twins through the technology.
In South Carolina, as of 2005, there were an estimated 10,563 same-sex couples living in
South Carolina. 6 About 3,770 children were living with these couples in parent-child
relationships.
Whether a civil code recognizes same-sex parents or banishes them from recognition
under law is irrelevant to these children. Children form vital and meaningful attachments to
adults as parents irrespective of institutions. This fact was recognized decades ago and, while
provocative in its time, is considered commonplace now:
Unlike adults, children have no psychological concept of relationship by blood-tie until
quite late in their development. What registers in their minds are the day-to-day

See S.C. Code Ann. Section 63-9-60(A)(1) (Supp. 2012): Any South Carolina resident may
petition the court to adopt a child. This is without regard to marital status, gender, or sexual
orientation.
4

See, e.g., Shapiro and Schultz, The Impact of Birth Innovations Upon Traditional Family
Notions, 24 J.Fam.L. 271 (1985).

Murphy, Dean A., The Desire for Parenthood: Gay Men Choosing to Become Parents Through
Surrogacy, 34 Journ. Fam. Issues, 1104 (2013).
6

Data from the Williams Institute at http://williamsinstitute.law.ucla.edu/uncategorized/southcarolina/.


-3-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 4 of 12

interchanges with the adults who take care of them and who, on the strength of these,
become the parent figures to whom they are attached. 7
South Carolina law recognizes this phenomenon. That an adult might take on the identity
of a parent irrespective of a blood tie is by now well-established. See Marquez v. Caudill, 376
S.C. 229, 656 S.E.2d 737 (2008); Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct. App.
2006) (recognizing the stature and importance of a psychological parent). The South Carolina
General Assembly has established rights for those in parental relationships irrespective of actual
parentage. See S.C. Code Ann. 63-15-60 (Supp. 2012) (recognizing a de facto custodian of a
child and standing to maintain the relationship).
Indeed, even in South Carolina, the mere sexual identity of a parent is irrelevant to the
question of whether a homosexual parent may be a good parent or even an adequate one.
Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704 (Ct. App. 1987).
Hence, whether reared by heterosexual parents, homosexual parents or any adult parent
figure, children do not select their parents. All children are similarly situated in that regard.
The creation of a child-parent relationship as part of a married family provides children with
opportunities and benefits, both tangible and intangible, unless, of course, fortuitously, they are
they are born to homosexual parents.
There is no evidence that children in these unions fare poorly. In fact, the evidence is to
the contrary. Nearly ten years ago, the board of the American Academy of Pediatrics
commissioned an analysis of the comparative effect of marriage and other unions on children,
including gay and lesbian partnerships. That study concluded there was ample evidence to show
that children raised by same gender parents fare as well as those raised by heterosexual parents.
7

Goldstein, Freud and Solnit, Beyond the Best Interest of the Child, (Free Press NY 1973), p. 12.
The authors urged law and policy makers in child placement decisions to recognize the
importance of the psychological parent.
-4-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 5 of 12

See Pawelski, et al., The Effects of Marriage, Civil Union and Domestic Partnership Laws on the
Health and Wellbeing of Children, 118 Pediatrics pp. 349-364 (2006). Almost a decade later, in
a follow-up survey of 15 studies conducted over 30 years, researchers confirmed these findings,
concluding that the well-being of children in their families is affected much more by their
relationships with their parents, their parents sense of competence and security, and the presence
of social and economic support for the family than by the gender or the sexual orientation of
their parents. Perrin & Siegel, Promoting the Well-Being of Children Whose Parents Are Gay or
Lesbian, (2013). 8 Relevant to the family in this case, a longitudinal study of children of lesbian
couples, and the only one of its kind, confirmed that adolescent children raised from birth by
lesbian couples do not manifest more adjustment difficulties, such as depression, anxiety and
disruptive behaviors, than those raised by their heterosexual counterparts. Gelderen, et al., The
Quality of Life of Adolescents Raised From Birth By Lesbian Mothers: The U.S. National
Longitudinal Family Study, 33 J. Dev. Behav. Pediatrics 1 (2012). 9
The truly deleterious effects for these children come not from same-sex unions but from
the denial of their recognition as parents equal before the law.
II. The Social and Psychological Consequences to These Children by Non-Recognition.
The United States Supreme Court has acknowledged that, when a law prohibits
recognition of the validity of a lawful same-sex marriage from another jurisdiction, it places the
children of that marriage at risk for suffering intangible, social, and psychological effects.
Specifically, in its opinion holding that the Federal Defense of Marriage Act (DOMA)
unconstitutionally distinguished between same-sex and opposite-sex marriages for purposes of
federal laws and benefits, the Court explained:
8

Available at http://pediatrics.aappublications.org/content/early/2013/03/18/peds.2013-0377.

The longitudinal study and findings over the years may be found at https://www.nllfs.org/.
-5-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 6 of 12

By creating two contradictory marriage regimes within the same State, DOMA forces
same-sex couples to live as married for the purpose of state law but unmarried for the
purpose of federal law, thus diminishing the stability and predictability of basic personal
relations the State has found it proper to acknowledge and protect. By this dynamic
DOMA undermines both the public and private significance of state-sanctioned same-sex
marriages; for it tells those couples, and all the world, that their otherwise valid marriages
are unworthy of federal recognition. This places same-sex couples in an unstable
position of being in a second-tier marriage. The differentiation demeans the couple,
whose moral and sexual choices the Constitution protects, and whose relationship the
State has sought to dignify. And it humiliates tens of thousands of children now being
raised by same-sex couples. The law in question makes it even more difficult for the
children to understand the integrity and closeness of their own family and its concord
with other families in their community and in their daily lives.
United States v. Windsor, __ U.S. __, 133 S.Ct. 2675, 2694, 186 L.Ed.2d 808 (2013) (emphasis
added; citation omitted).
The Fourth Circuit agrees.
[A]s the American Psychological Association, American Academy of Pediatrics,
American Psychiatric Association, National Association of Social Workers, and Virginia
Psychological Association (collectively, the APA) explain in their amicus brief, . . . by
preventing same-sex couples from marrying, the Virginia Marriage Laws actually harm
the children of same-sex couples by stigmatizing their families and robbing them of the
stability, economic security, and togetherness that marriage fosters. . . .
We find the arguments that the Opponents and their amici make on this issue extremely
persuasive.
Bostic v. Schaefer, 760 F.3d 352, 383-384 (4th Cir. 2014)
As Judge Posner of the Seventh Circuit Court of Appeals recently noted, in more
pragmatic terms:
Consider now the emotional comfort that having married parents is likely to provide to
children [of] same-sex couples. Suppose such a child comes home from school one day
and reports to his parents that all his classmates have a mom and a dad, while he has two
moms (or two dads, as the case may be). Children, being natural conformists, tend to be
upset upon discovering that they're not in step with their peers. If a child's same-sex
parents are married, however, the parents can tell the child truthfully that an adult is
permitted to marry a person of the opposite sex, or if the adult prefers as some do a
person of his or her own sex, but that either way the parents are married and therefore the
child can feel secure in being the child of a married couple. Conversely, imagine the
parents having to tell their child that same-sex couples can't marry, and so the child is not
the child of a married couple, unlike his classmates.
-6-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 7 of 12

Baskin v. Bogan, 766 F.3d 648, 663-64 (7th Cir. 2014).


The stigma of being labeled a child of unmarried parents is not a foreign concept in South
Carolina law. See, e.g., In re Estate of Mercer, 288 S.C. 313, 317-18, 342 S.E.2d 591, 593
(1986), quoting Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 175, 92 S.Ct. 1400,
1407, 31 L.Ed.2d 768, 779 (1972) ("Obviously no child is responsible for his birth and
penalizing the illegitimate child is an ineffective as well as an unjust way of deterring the
parent."); Bradey v. Childrens Bureau of S.C., 275 S.C. 622, 628, 274 S.E.2d 418, 422 (1981)
(The public has a strong interest, too, in preserving the confidential non-public nature of the
[adoption] process. Public attitudes toward illegitimacy . . . have not changed sufficiently to
warrant careless disclosure of the circumstances leading to adoption. Ultimately the United
States Supreme Court declared such distinctions between legitimate and illegitimate children
invidious discrimination due merely to the circumstances of birth, beginning with Levy v
Louisiana, 391 U.S. 68 (1968). 10 It may be said of South Carolinas harsh treatment of children
raised in same-sex unions that they are nullium liberi, as the common law goes the children
of nobody.
III. These Children Are Deprived of Tangible State and Federal Benefits.
Children of State-recognized marriages are entitled to a number of direct and indirect
benefits that are not available to children of non-marital relationships. For example, in striking
down DOMA as unconstitutional, the United States Supreme Court specifically recognized
several such benefits in Windsor:
DOMA also brings financial harm to children of same-sex couples. It raises the cost of
health care for families by taxing health benefits provided by employers to their workers'
10

For a discussion of the analogue between the Supreme Courts jurisprudence in those cases
and children here, see Ledsham, Benjamin G., Means To Legitimate Ends: Same-Sex Marriage
Through the Lens of Illegitimacy-Based Discrimination, 28 Cardozo L. Rev. 2373 (2006).
-7-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 8 of 12

same-sex spouses. See 26 U.S.C. 106; Treas. Reg. 1.106-1, 26 CFR 1.106-1
(2012); IRS Private Letter Ruling 9850011 (Sept. 10, 1998). And it denies or reduces
benefits allowed to families upon the loss of a spouse and parent, benefits that are an
integral part of family security. See Social Security Administration, Social Security
Survivors Benefits 5 (2012) (benefits available to a surviving spouse caring for the
couple's child), online at http://www.ssa.gov/pubs/EN-05-10084.pdf.
United States v. Windsor, __ U.S.__, 133 S.Ct. 2675, 2695, 186 L.Ed.2d 808 (2013).
Other jurists and commentators have similarly catalogued the tangible benefits that enure
directly or indirectly to children when their parents marry. Among these:

Tax savings parents receive when married filing jointly, resulting in greater funds for
the family unit, including the child;

Tax deduction for the child as a dependent of his/her non-biological, bread-winner


parent, again providing greater funds to the family unit;

An estate tax deduction for a surviving spouse increases the size of an estate (and,
consequently, the childs share);

Gift tax exception for spouses helps maintain a larger family estate, benefiting the
children;

State-mandated access to enrollment in a spouse's or parents health insurance plan;

Healthcare benefits for spouses and children of federal employees;

Childs ability to remain on a parents healthcare plan per the Affordable Care Act;

Childs qualification as an insured (as a resident relative) under a parents automobile


insurance policy, S.C. Code Ann. 38-77-30(7) (1976, as amended);

Child support upon divorce of parents;

Non-resident parent may avoid deportation and remain with the child if the other
parent is a U.S. resident;

Death benefits payable to a surviving spouse or child of a military veteran;

Survivor benefits to a spouse or child of public safety officer killed in the line of duty;

Child as wrongful death beneficiary of parent;

Elective share or right to inherit when a spouse dies intestate and other protections for
marital property upon the death of a spouse;
-8-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Government employment preferences for spouses; and

Childs share of parents intestate estate. 11

Page 9 of 12

See generally Baskin v. Bogan, 766 F.3d 648, 658-59 (7th Cir. 2014); Silverman, Suffer the Little
Children: Justifying Same-Sex Marriage from the Perspective of a Child of the Union, 10 W.Va.
L. Rev. 411, 436- (1999). See also, Smith, Equal Protection for Children of Same-Sex Parents,
90 Wash. U. L. Rev. 1589 (2013) for a catalogue of the benefits denied such children.
A child of a same-sex union, however, is unable to avail herself of these benefits when
the State refuses to allow her parents to marry, even though the child is in nowise responsible
for her existence or status. Barr's Next of Kin v. Cherokee, Inc., 220 S.C. 447, 456, 68 S.E.2d
440, 444 (1951).
Arguments against same-sex marriage rely on raising the specter of the impact of its
recognition on future generations of children. Instead of agonizing over the lives of those
children yet unborn, perhaps the state should consider the more compelling needs of those
children in existence in these relationships. As one analyst has observed:
The abstract possibility of harm or benefit simply cannot outweigh the realities of existing
children who have the same emotional or economic needs as other children. These real needs
should trump abstract ones, and the law should reflect such a prioritization of values. 12
IV. The Differential Treatment of Children Depending on the Fortuity of Whether They Have
Heterosexual or Homosexual Parents is a Denial of Equal Protection Under the Law.
South Carolinas prohibition on same-sex marriage and its consequent denial to
children of same-sex relationships of the opportunity to have married parents violates the
11

Interestingly, South Carolina has already arguably noted the inequity of denying inheritance
rights to children of same-sex marriages as compared to those of opposite-sex marriages. See In
re Estate of Mercer, 288 S.C. 313, 317-18, 342 S.E.2d 591, 593 (1986) (The state's interest in
the sanctity of marriage is not substantially related to limiting the inheritance rights of a certain
class of illegitimate children.).
12

Rosato, Children of Same-Sex Parents Deserve the Security Blanket of the Parentage
Presumption, 44 Fam. Ct. Rev. 74 (2006).
-9-

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 10 of 12

Fourteenth Amendment's Equal Protection Clause. The Equal Protection Clause commands
that no state shall deny to any person within its jurisdiction the equal protection of the laws,
which is essentially a direction that all persons similarly situated should be treated alike. City of
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985), quoting U.S. Const., amend. XIV., 1.
To reiterate, children have no choice as to their parents and therefore are not
blameworthy if their parents are in a relationship that the state rightly or wrongly deems
unworthy of equal treatment. As such, depriving some children of the tangible and intangible
benefits accorded to similarly situated children whose parents are permitted to marry will not
and cannot have any effect on whether these children end up with heterosexual or homosexual
parents. Similarly, denying benefits to such children is unlikely to influence homosexuals
desires to marry. Arguably, it could affect their desire to adopt children. This would certainly
not advance any legitimate State interest, however; rather, any deterrent to adoption by samesex parents would be contrary to the desirable goal of having children raised by families, a goal
endorsed by the state in its adoption laws.
This begs the questions: What is the States purported interest in treating children of
same-sex relationships differently? There is none.
The equal protection rubric created by the Supreme Court initially requires an analysis of
the level of constitutional scrutiny to apply when evaluating a laws unequal treatment of
similarly situated groups: either a rational basis review or some form of heightened scrutiny,
such as strict scrutiny. Bostic v. Schaefer, 760 F.3d 352, 375 (4th Cir. 2014)
This court need not become mired, however, in the determination of whether heightened
scrutiny is required when considering the states differential treatment between children of

- 10 -

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 11 of 12

opposite-sex marriages and children of same-sex marriages; the result would be largely academic
as there is no basis, rational or otherwise, to justify the states arbitrary and discriminatory
treatment of the children of same-sex marriages. See Baskin v. Bogan, 766 F.3d 648, 656 (7th
Cir. 2014) (The discrimination against same-sex couples is irrational, and therefore
unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why
we can largely elide the more complex analysis found in more closely balanced equal-protection
cases.).
Conclusion
Children do not choose their parents or their parents sexual orientation. South Carolina
children are entitled to equal protection under the law regardless of their parents gender identity.
A South Carolina parent can provide a child with valuable rights when marrying someone
of the opposite sex. But, given the states ban on same-sex marriages, South Carolina children
are not entitled to the same rights if they happen, through no choice of their own, to have a
parent who wants to marry someone of the same sex.
The effect of this difference is to deny children of same-sex relationships equal protection
under the law.
For the reasons given here, amicus Lawyers Committee for Childrens Rights respectfully
requests consideration of this memorandum of law in rendering any decisions on plaintiffs
motion for summary judgment and any further decisions affecting the outcome of this case.
Respectfully submitted,
LAWYERS' COMMITTEE
FOR CHILDREN'S RIGHTS

- 11 -

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86

Page 12 of 12

Alexander M. Sanders, Jr.


Fed. ID No. 3714
19 Water Street
Charleston, SC 29401
Phone:
843-577-6572
Fax:
843-953-7570
Email:
goffp@cofc.edu
and
John D. Elliott
Fed. ID No. 000702
Law Offices of John D. Elliott, P.A.
Post Office Box 607
1122 Lady Street, 5th Floor
Columbia SC 29202
Phone: 803.252.9236
Fax:
803.799.2079
Email: jayel@mindspring.com
and
By: /s/ Bert G. Utsey, III
Bert G. Utsey, III
Fed. ID No. 1045
Peters, Murdaugh, Parker,
Eltzroth & Detrick, P.A.
123 Walter Street
Post Office Box 1164
Walterboro, SC 29488
Phone:
(843) 549-9544
Fax:
(843) 549-9546
Email:
butsey@pmped.com
November 5, 2014

- 12 -

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-1

Pawelski, et al.,
The Effects of Marriage,
Civil Union and Domestic Partnership Laws
on the Health and Wellbeing of Children,
118 Pediatrics pp. 349-364 (2006)

Page 1 of 19

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-1

Page 2 of 19

The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the
Health and Well-being of Children
James G. Pawelski, Ellen C. Perrin, Jane M. Foy, Carole E. Allen, James E. Crawford,
Mark Del Monte, Miriam Kaufman, Jonathan D. Klein, Karen Smith, Sarah Springer,
J. Lane Tanner and Dennis L. Vickers
Pediatrics 2006;118;349
DOI: 10.1542/peds.2006-1279

The online version of this article, along with updated information and services, is
located on the World Wide Web at:
http://pediatrics.aappublications.org/content/118/1/349.full.html

PEDIATRICS is the official journal of the American Academy of Pediatrics. A monthly


publication, it has been published continuously since 1948. PEDIATRICS is owned,
published, and trademarked by the American Academy of Pediatrics, 141 Northwest Point
Boulevard, Elk Grove Village, Illinois, 60007. Copyright 2006 by the American Academy
of Pediatrics. All rights reserved. Print ISSN: 0031-4005. Online ISSN: 1098-4275.

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-1

Page 3 of 19

SPECIAL ARTICLE

The Effects of Marriage, Civil Union, and Domestic


Partnership Laws on the Health and Well-being of
Children
James G. Pawelski, MSa, Ellen C. Perrin, MDb, Jane M. Foy, MDc, Carole E. Allen, MDd, James E. Crawford, MDe, Mark Del Monte, JDf,
Miriam Kaufman, MDg, Jonathan D. Klein, MDh, Karen Smithi, Sarah Springer, MDj, J. Lane Tanner, MDk, Dennis L. Vickers, MDl
Divisions of aState Government Affairs and iDevelopmental Pediatrics and Preventive Services, American Academy of Pediatrics, Elk Grove Village, Illinois; bDivision of
Developmental-Behavioral Pediatrics and Center for Children With Special Needs, Floating Hospital for Children, Tufts-New England Medical Center, Boston,
Massachusetts; cDepartment of Pediatrics, Wake Forest University Health Sciences, Winston-Salem, North Carolina; dPediatrics, Harvard Vanguard Medical Associates,
Boston, Massachusetts; eCenter for Child Protection, Childrens Hospital and Research Center, Oakland, California; fDepartment of Federal Affairs, American Academy of
Pediatrics, Washington, DC; gDivision of Adolescent Medicine, Hospital for Sick Children, Toronto, Ontario, Canada; hDepartment of Pediatrics, University of Rochester
School of Medicine and Dentistry, Rochester, New York; jPediatric Alliance, PC, Pittsburgh, Pennsylvania; kChildrens Hospital and Research Center, Oakland, California;
lPediatric Residency Program, John H. Stroger, Jr Hospital of Cook County, Chicago, Illinois
The authors have indicated they have no nancial relationships relevant to this article to disclose.

N 2005, THE American Academy of Pediatrics (AAP) Board of Directors commis-

sioned the Committee on Psychosocial Aspects of Child and Family Health, the
Committee on Early Childhood, Adoption, and Dependent Care, the Committee
on Adolescence, the Committee on State Government Affairs, the Committee on
Federal Government Affairs, and the Section on Adoption and Foster Care to
develop an analysis examining the effects of marriage, civil union, and domestic
partnership statutes and amendments on the legal, financial, and psychosocial
health and well-being of children whose parents are gay or lesbian.
In developing this analysis, the involved committees and section held before
them the AAPs core philosophythat the family is the principal caregiver and the
center of strength and support for children. Together with this philosophy, contributors recognized the reality that our gay and lesbian patients grow up to be gay
and lesbian adults. Because many pediatricians are fortunate to care for 2 or more
generations of a family, we are likely to encounter and remain involved with our
patients, regardless of sexual orientation, as they mature and mark the milestones
of establishing a committed partnership with another adult, deciding to raise a
family, and entrusting the health and well-being of their own children to us.
This analysis explores the unique and complex challenges that same-gender
couples and their children face as a result of public policy that excludes them from
civil marriage. In compiling this report it became clear to the contributing committees and section that the depth and breadth of these challenges are largely
unknown to the general public and perhaps even to many pediatricians. As such,
the AAP Board of Directors approved the broad dissemination of this analysis to
assist pediatricians with addressing the complex issues related to same-gender
couples and their children.

www.pediatrics.org/cgi/doi/10.1542/
peds.2006-1279
doi:10.1542/peds.2006-1279
Key Words
civil marriage, same gender, gay, lesbian,
rights
Abbreviations
AAPAmerican Academy of Pediatrics
DOMADefense of Marriage Act
APAAmerican Psychological Association
Accepted for publication May 4, 2006
Address correspondence to James G. Pawelski,
MS, 141 Northwest Point Blvd, Elk Grove
Village, IL 60007. E-mail: jpawelski@aap.org
PEDIATRICS (ISSN Numbers: Print, 0031-4005;
Online, 1098-4275). Copyright 2006 by the
American Academy of Pediatrics

PEDIATRICS Volume 118, Number 1, July 2006

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

349

3:13-cv-02351-JMC

Date Filed 11/05/14

DEFINITIONS
It is important to note at the outset the distinction in the
types of marriages that exist in the United States and
throughout the world, namely civil marriage and religious marriage. In addition, there are significant legal
distinctions among civil marriage, civil union, and domestic partnership, although these terms are often incorrectly used interchangeably.
Civil Marriage and Religious Marriage
Civil marriage is a legal status established through a
license issued by a state government. Such status grants
legal rights to, and imposes legal obligations on, the 2
married partners.
Depending on the faith, religious marriage is considered to be a liturgical rite, a sacrament, or a solemnization of the uniting of 2 persons and is recognized by the
hierarchy and adherents of that religious group. The
hierarchy, clergy, and in some cases members of religious organizations, establish their own criteria and rules
for who may marry within their assemblies. They are not
bound by statutory definitions of marriage. Civil government entities in the United States have no authority over
a religious organizations autonomy.
In the United States, couples may choose to marry in
a civil ceremony, a religious ceremony, or both. In the
United States, state governments grant priests, rabbis,
clerics, ministers, and other clergy presiding over a religious marriage the authority of the state to endorse the
marriage license and establish a civil marriage. Certain
public officials in the United States, such as judges, justices of the peace, and others, also have the authority to
establish civil marriage.
By contrast, in many European countries and elsewhere in the world, religious officials have no authority
to establish civil marriages. If couples in these countries
wish to participate in the marriage ceremony of a faith
tradition, religious ceremonies are often held once a civil
ceremony has taken place. However, a marriage is considered legal only by means of issuance and endorsement of a marriage license by civil authorities.
Because clergy in the United States are vested with
the authority of the government for purposes of civil
marriage, many people are not aware of the distinction
between civil and religious marriage and assume that the
2 are inextricably linked. However, the following analysis presumes this distinction. It addresses issues related
to civil marriage, leaving issues of religious marriage to
religious organizations and individuals.
Civil Union
A civil union is a legal mechanism, sanctioned by civil
authority, intended to grant same-gender couples legal
status somewhat similar to civil marriage. In the United
States, civil unions have been established only in Vermont and Connecticut. In these states, same-gender
350

PAWELSKI et al

Entry Number 86-1

Page 4 of 19

couples are granted the same state-level rights, benefits,


and protections as those granted to heterosexual married
couples. No other states recognize civil unions. As such,
same-gender couples considered to be legally united in
either of those states are treated as single individuals
when they cross into other states.
Unlike the national governments of some foreign
countries, the US federal government does not recognize
civil unions. As a result, 1000 federal rights, benefits,
and protections are not made available to same-gender
couples joined by civil union in the United States.
Domestic Partnership
A domestic partnership is a relationship between 2 individuals, often but not necessarily of the same gender,
who live together and mutually support one another as
spouses but who are not legally joined in a civil marriage
or a civil union. Some same-gender couples enter into
domestic partnership agreements to create legally enforceable contracts involving property, finances, inheritance, and/or health care. Domestic partnerships do not
reach the same legal threshold as civil unions or civil
marriages and, accordingly, do not afford couples the
rights, benefits, and protections of civil marriage.
DEMOGRAPHICS
In 1990, the US Census Bureau began allowing individuals to describe another same-gender household member with whom the respondent has a relationship as an
unmarried partner. By comparing the gender of the
household members who identified themselves as unmarried partners, the Census Bureau was able to identify
unmarried couples made up of 2 men or 2 women. The
1990 count of same-gender unmarried-partner couples
was 145 130.1
Census 2000 also collected data on unmarried-partner households of the same and opposite genders. A
special report on this topic from the Census Bureau
indicated that the number of same-gender unmarriedpartner households was 594 691 in 2000.2 The increase
over the 1990 count is likely a result of changes in social
climate with regard to gay and lesbian relationships, a
willingness on the part of census respondents to identify
their sexual orientation, and use of anonymous versus
in-person survey methods.
Numerous demographers report that this number,
although significant, is still likely to be a considerable
undercount of the actual number of same-gender partner households in the United States. Several factors explain this undercount. For confidentiality reasons, some
couples may have preferred not to identify the nature of
their relationship on a government survey. Some couples may define their relationship as something other
than husband/wife or unmarried partner. Other couples
may consider themselves married according to a more
broad interpretation of the social construct of civil mar-

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

riage. However, for the purposes of the 2000 census


report, after the enactment of the federal Defense of
Marriage Act (DOMA) in 1996, the Census Bureau was
required to invalidate any responses that designated a
same-gender individual as a spouse and assign those
responses to the same-gender unmarried-partner category.3 Research indicates that the Census Bureau missed
at least 16% to 19% of all gay or lesbian couples in the
2000 count.4
Despite the likelihood of an undercount and the legal
restrictions on the Census Bureau resulting from the
enactment of DOMA, Census 2000 represents the most
comprehensive source of data on same-gender partnered
households to date, allowing demographers to analyze
data at the national, state, city/town, and community
levels.*
Specific Census 2000 findings include:
Same-gender couples live in 99.3% of all US counties.
Same-gender couples are raising children in at least

96% of all US counties.


Nearly one quarter of all same-gender couples are

raising children.
Nationwide, 34.3% of lesbian couples are raising chil-

dren, and 22.3% of gay male couples are raising children (compared with 45.6% of married heterosexual
and 43.1% of unmarried heterosexual couples raising
children).
Vermont has the largest aggregation of same gender-

couples (1% of all households) followed by California, Washington, Massachusetts, and Oregon.
Regionally, the South has the highest percentage of

same-gender couples who are parents; 36.1% of lesbian couples and 23.9% of gay couples in the South
are raising children.
The second highest percentage is seen in the Midwest,

where 34.7% of lesbian couples and 22.9% of gay


couples are parenting children.
In the West, 33.1% of lesbian couples and 21.1% of

Entry Number 86-1

Page 5 of 19

The states with the highest percentages of gay male

couples raising children are Alaska (36%), South Dakota (33%), Mississippi (31%), and Idaho and Utah
(30% each).
Six percent of same-gender couples are raising chil-

dren who have been adopted compared with 5.1% of


heterosexual married couples and 2.6% of unmarried
heterosexual couples.
Eight percent of same-gender parents are raising chil-

dren with special health care needs, compared with


8.3% of heterosexual unmarried parents and 5.8% of
heterosexual married parents.
Of same-gender partners raising children, 41.1% have

been together for 5 years or longer, whereas 19.9% of


heterosexual unmarried couples have stayed together
for that duration.
It is difficult to determine exactly how many children
are being raised by a gay or lesbian parent or parents
because of many of the same factors that impact the
determination of the number of same-gender couples.
Estimates range between 1 and 10 million.5,6 The majority of these children were born in the context of a
heterosexual relationship. Two thirds of these children
live in the 42 states in which second-parent adoption is
specifically forbidden or not guaranteed by statute or
court ruling.
PUBLIC POLICIES REGARDING CHILDREN WITH GAY OR
LESBIAN PARENTS
Overview
Census 2000 and related demographic research make it
clear that parenting by same-gender couples is an established and growing part of the diverse structure of families in the United States. Public policies that aim to
promote family stability and security typically are established without consideration for same-gender parents
and their children, and they place these families at a
disadvantage, as they do heterosexual unmarried parents, single parents, and extended-family caregivers.
Public policy designed to promote the family as the
basic building block of society has at its core the protec-

gay couples are parents.


In the Northeast, 32.6% of lesbian couples and 21.7%

of gay couples are raising children.


The states with the highest percentages of lesbian

couples raising children are Mississippi (43.8%),


South Dakota and Utah (42.3% each), and Texas
(40.9%).
* It is important to note that Census 2000 counted only same-gender unmarried partners and
should not be interpreted as a count of either the entire gay, lesbian, and bisexual population or
the whole same-gender partnered population of the United States because the Census survey
did not include questions about sexual orientation, did not count single gay and lesbian people,
and did not count gay and lesbian couples who do not cohabitate.

Although adoption is commonly thought to be the only way that gays and lesbians become
parents, there are many paths to parenthood. Some have biological children from past heterosexual marital and nonmarital relationships, and some pursue surrogacy arrangements or undergo in vitro fertilization or alternative insemination with donor sperm. Where allowed by law,
some gay and lesbian people become foster parents, whereas others choose to adopt children
through domestic and international, public and private arrangements.
Eight states and the District of Columbia have approved second-parent adoption for lesbian
and gay parents either by statute or state appellate court rulings, which means that it is granted
in all counties statewide. These states include California (as a result of the states 2001 domestic
partner law), Connecticut, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, and
Vermont. Some lesbian and gay parents also have been granted second-parent adoptions in 18
other states. In some of these states, adoptions have been granted at the trial-court level, which
means that, to date, they have been approved in certain counties only. In other states, there is
anecdotal information about these adoptions being granted, although there is a lack of afrmative case law. These 18 states include Alabama, Alaska, Delaware, Hawaii, Indiana, Iowa,
Louisiana, Maryland, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, Ohio, Oregon, Rhode Island, Texas, and Washington.

PEDIATRICS Volume 118, Number 1, July 2006

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

351

3:13-cv-02351-JMC

Date Filed 11/05/14

tion of childrens health and well-being. Childrens wellbeing relies in large part on a complex blend of their own
legal rights and the rights derived, under law, from their
parents. Children of same-gender parents often experience economic, legal, and familial insecurity as a result
of the absence of legal recognition of their bonds to their
nonbiological parents. Current public-policy trends,
with notable exceptions, favor limiting or prohibiting the
availability of civil marriage and limiting rights and protections to same-gender couples.
Although some states and jurisdictions have recognized civil unions and domestic partnership arrangements, these legal constructs do not carry the same
rights, benefits, and protections that are conferred by
civil marriage. In 2004, the United States Government
Accountability Office (formerly known as the General
Accounting Office) identified a total of 1138 federal statutory provisions classified to the United States Code in
which marital status is a factor in determining or receiving rights, benefits, and protections.7 Only Massachusetts currently allows same-gender couples to marry.
(See Table 1 for a comparison of civil marriage, civil
union, and domestic partner laws.)
With the exception of the states and jurisdiction mentioned in Table 1 and a small number of counties and
municipalities, same-gender couples and their children
are not afforded legal recognition or protection under
the law. In fact, public-policy makers at all levels of
government have moved to enact legislation to prohibit
any type of legal recognition of same-gender partnerships and parenting. In addition, state constitutional
amendments prohibiting same-gender civil marriage,
civil union, and domestic partnership have established
de facto blanket prohibitions on prospective legislation
favorable to same-gender couples and their children,
thereby restricting their access to the political process
itself.

State Perspective: Marriage


DOMAs
Since the enactment of the federal DOMA in 1996, 42
states have enacted similar laws. With the exception of
the provision regarding public policy, all of the measures
replicate the federal DOMA. These laws generally contain at least 1 of the following 4 provisions.

Entry Number 86-1

Page 6 of 19

1. Definition of marriage as a legal union between a


man and a woman.
2. Prohibition of recognition of same-gender marriages
that are granted in other states.
3. Declaration of same-gender marriage as a violation of
public policy.
4. Definition of spouse as only a person of the opposite
gender who is legally married as a wife or husband.
Alabama, Arkansas, Georgia, Kentucky, Michigan,

Missouri, and Pennsylvania have laws that define


marriage as a legal union between a man and
woman, prohibit recognition of same-gender marriages granted by other states, and declare samegender marriage to be a violation of the states public policy. (Missouris Supreme Court subsequently
overturned the states 1996 law, leading to a constitutional amendment banning same-gender marriage.)
Alaska, Florida, Indiana, Nebraska, South Dakota,

and West Virginia define marriage as a legal union


between a man and woman and prohibit recognition of same-gender marriages granted by other
states.
Idaho, Louisiana, Montana, and South Carolina

prohibit recognition of same-gender marriages


granted by other states and declare same-gender
marriages a violation of the states public policy.
Colorado, Kansas, and Tennessee laws define mar-

riage as a legal union between a man and a woman


and declare same-gender marriage a violation of the
states public policy.
North Dakota law defines marriage as a legal union

between a man and a woman, and spouse as only a


person of the opposite gender who is legally married
as a wife or husband. (Florida, North Dakota, and
Texas are the only states that have adopted the
federal DOMA definition of spouse as only a person
of the opposite gender who is legally married as a
wife or husband.)
Arizona, Delaware, Illinois, Maine, Mississippi,

North Carolina, Oklahoma, Texas, Utah, and Virginia laws prohibit the recognition of same-gender
marriages granted by other states.
California, Hawaii, Iowa, Minnesota, Nevada, and

Ala Code 30-1-19; Alaska Stat 25.05.013; Ariz Rev Stat 25-101; Ark Code Ann 9-11-107,
109, 208, and 803; Calif Code 308.5; Colo Rev Stat 14-2-104; Del Code Ann 13-101; Fla Stat
Ann 741.212; Ga Code Ann 19-3-3.1; Hawaii Rev Stat 572-3; Idaho Code 32-202 and 209;
Ill Comp Stat 750 5/201 and 5/212; Ind Code 31-11-1-1; Iowa Code 595.2; Kan Stat Ann
23-101; Ky Rev Stat Ann 402.005, .020, and .045; La Civ Code Article 89 and 3520; Me Rev Stat
Ann title 19A 701; Mich Stat Ann 551.1 and .271; Minn Stat 517. 01; Miss Code Ann 93-1-1;
Mo Rev Stat 451.022; Mont Code Ann 40-1-401; Neb Const Article I 29; Nev Const Article I
21; NC Gen Stat 51-1.2; ND Cent Code 14-03-01; Okla Stat title 43 3; Pa Cons Stat Ann 23
1704; SC Code Ann 20-1-15; SD Codied Laws 25-1-1 and 25-1-38; Tenn Code Ann 363-113; Tex Fam Code Ann 2.001 and 3.401; Utah Code Ann 30-1-2 and 30-1-4; Va Code Ann
20-45.2; Wash Rev Code 26.04.010 and 26.04.020; WVa Code 48-1-7 and 48-1-18A.

352

PAWELSKI et al

Washington laws define marriage as a legal union


between a man and woman.

Additional Measures
A number of states have taken other measures, not
necessarily linked to the federal DOMA movement, to
prohibit same-gender civil marriage.

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

No federal rights, benets, or protections

No federal rights, benets, or protections

Rights, benets, and protections conferred


to married couples

Federal Applicability

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014


A number of other cities and counties as
well as employers also recognize
domestic partner relationships

California, the District of Columbia,


Hawaii, Maine, and New Jersey
currently have domestic partnership
laws that confer limited protections,
such as hospital visitation and
inheritance rights, to same-gender
couples who register with the state
Some states have recognized domestic
partners of state employees, but a
number of these have ended this
recognition after passage of state
DOMA laws and/or constitutional
marriage amendments

Available in Connecticut and Vermont to


same-gender couples only

Available to same-gender couples only in


Massachusetts

Available in all states to heterosexual


couples

Availability

The District of Columbia allows domestic


partner registration, allowing partners
to be legally recognized as family for
the purposes of visitation in health care
facilities; the law also grants a number
of benets to DC government
employees and their domestic
partners, including family/medical
leave and health insurance coverage
Hawaii, Maine, and New Jersey laws grant
some state spousal rights to unmarried
couples

1138 federal benets in the areas of Social


Security, employment, health care,
taxation, family leave, immigration and
naturalization, trade, commerce and
intellectual property, and the judicial
system
Federal benets are not granted to samegender couples married in
Massachusetts because the federal
government does not recognize this
state law
Numerous state-based benets that vary
by location
Both the Connecticut and Vermont civil
union laws grant same-gender
partners the same benets,
protections, and responsibilities under
respective state law as are granted to
spouses in a marriage
The California domestic partnership law
grants to unmarried couples most of
the state spousal rights afforded to
married couples

Benets Provided

Entry Number 86-1

Adapted from: National Gay and Lesbian Task Force. Ways to protect same-sex relationships: a comparison. Available at: www.thetaskforce.org/downloads/MarriageDifferences.pdf. Accessed June 7, 2005.

Currently, Connecticut and Vermont are


the only states with civil union laws;
because of state DOMAs and other
related laws, Connecticuts and
Vermonts civil unions have not been
recognized by other states
Because domestic partnership laws are
generally state-, community-, or
employer-specic, they are not
thought to have portability beyond
the partners state, community, or
place of employment

Persons married in 1 state are considered


married in all other states

Portability

Date Filed 11/05/14

Domestic partnership

Civil union

Civil marriage

Type of Legally
Binding Relationship

TABLE 1 Comparison of Civil Marriage, Civil Union, and Domestic Partnership Laws

3:13-cv-02351-JMC
Page 7 of 19

PEDIATRICS Volume 118, Number 1, July 2006

353

3:13-cv-02351-JMC

Date Filed 11/05/14

Before passage of the federal DOMA, Maryland, New

Hampshire, and Wyoming enacted laws to prohibit


same-gender civil marriage.
An Ohio statute, replicated with a state constitutional

amendment, prohibits same-gender civil marriages,


civil unions, and domestic partnerships.
In 1971, the Wisconsin Supreme Court issued a ruling

that only heterosexual marriages are legal.


In 2000, the Vermont High Court allowed the legisla-

ture to enact a statute prohibiting same-gender civil


marriage, providing it also enact a law allowing civil
unions for same-gender couples.
On November 18, 2003, the Massachusetts Supreme
Judicial Court ruled that prohibiting same-gender couples from civil marriage violated the states constitution.
After the ruling, the state senate requested from the
court an advisory opinion on the constitutionality of a
proposed law that would ban same-gender civil marriage
but would create civil unions as a parallel institution
with all the same state benefits, protections, rights, and
responsibilities as civil marriage. On February 4, 2004,
the court answered, segregating same-sex unions from
opposite-sex unions cannot possibly be held rationally to
advance or preserve the governmental aim of encouraging stable adult relationships for the good of the
individual and of the community, especially its children. As a result of the ruling, Massachusetts began
issuing marriage licenses to same-gender couples on
May 20, 2004. It is important to note that the Massachusetts marriage law is not recognized by the federal
government and does not entitle same-gender married
couples to any federal rights, benefits, or protections.
A small number of states have recently considered
legislation to legalize same-gender civil marriages and
domestic partnerships.
In 2005 the California legislature became the first in

the country to pass a bill that would legalize samegender civil marriage. However, Governor Arnold
Schwarzenegger vetoed the measure, noting that he
preferred that the state supreme court decide the matter rather than legislators.
Maryland Governor Robert Ehrlich, Jr vetoed a do-

mestic partnership registry approved by the state legislature in 2005.


Also in 2005, bills allowing for same-gender civil mar-

riage were introduced in Maine and Rhode Island;


however, they did not advance.
Constitutional Amendments
To date, 19 states have amended their constitutions to
prohibit civil marriage by persons of the same gender. A
number of these states already had enacted DOMA-like
laws. Efforts to amend the constitutions of these states
354

PAWELSKI et al

Entry Number 86-1

Page 8 of 19

were undertaken in an effort to prohibit judges from


overturning these statutory bans on the grounds that
they violate state constitutions.
In Alaska, Hawaii, Mississippi, Missouri, Montana, Ne-

vada, and Oregon, civil marriage for same-gender couples is prohibited by the state constitutions.
Constitutional amendments banning same-gender

civil marriage, civil unions, and domestic partnerships


and related benefits have been adopted in Arkansas,
Georgia, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, Texas, and
Utah. Some of these constitutional amendments also
ban civil unions and domestic partnerships and related
benefits for opposite-gender couples. A federal judge
struck down Nebraskas amendment in 2005.
States continue to consider constitutional amendments to prohibit same-gender civil marriage and other
legal forms of relationship recognition.
Amendments to ban same-gender civil marriage in

Alabama, South Carolina, South Dakota, and Tennessee await consideration by the voters of those states
during the 2006 elections.
In early 2006, the Virginia legislature approved a mea-

sure to amend the states 230-year-old bill of rights to


prohibit same-gender civil marriage, thereby ensuring
its position on the November 2006 ballot. Amendment
bills await second votes by lawmakers in Washington
in 2006 and Indiana in 2007.
In March 2006, the New Hampshire House of Repre-

sentatives voted 201 to 125 to defeat a proposal to


amend the states bill of rights with a constitutional
ban on same-gender civil marriage.
Efforts are underway in Arizona, California, and Flor-

ida to add amendments banning same-gender civil


marriage to their respective ballots.
Legal challenges, interpretation questions, and scope
of applicability of the amendments signal a growing
trend in the public-policy arena.
On May 12, 2005, a federal judge struck down Nebraskas constitutional ban on same-gender civil marriage. Judge Joseph F. Bataillon ruled that the ban violated the US Constitution because it went far beyond
merely defining marriage as between a man and a
woman, noting that the broad proscriptions could also
interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals. The ruling also stated
that the amendment imposes significant burdens on
both the expressive and intimate associational rights of
gay men and lesbians and creates a significant barrier to
the plaintiffs right to petition or to participate in the

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

political process.8 Judge Bataillons ruling has been


touted by opponents of same-gender civil marriage as an
example of the need for a federal amendment to prohibit
civil marriage, civil union, and domestic partnership for
gays and lesbians. Plans to appeal the ruling to the 8th
Circuit US Court of Appeals are underway.
In April 2005, Michigans Attorney General Mike Cox
issued a binding opinion instructing local governments,
government entities, and public employers (such as
school boards and university systems) to cease providing
benefits for same-gender partners in future contracts in
compliance with the states 2004 marriage amendment.9
A suit filed against the state based on this interpretation
resulted in Ingham County Circuit Judge Joyce Draganchuks September 2005 ruling that the purpose of a 2004
constitutional amendment was to ban gay marriage and
civil unions, not to keep public employers from offering
benefits to gay employees.10 The ruling is currently under appeal.
Ohios 2004 marriage amendment, regarded as the
most restrictive in the nation, reads, Only a union
between one man and one woman may be a marriage
valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not
create or recognize a legal status for relationships of
unmarried individuals that intends to approximate the
design, qualities, significance or effect of marriage. As a
result, judges around the state have dismissed or reduced charges in domestic violence cases, because Ohios
domestic violence law recognizes the relationship between an unmarried offender and victim as one approximating the significance or effect of marriage,
thereby representing a direct conflict with the amendments prohibition against such recognition, thus rendering it unenforceable.11
In January 2006, Baltimore Circuit Court Judge
Brooke Murdock ruled that denying same-gender couples the protections afforded heterosexual married couples is a violation of the Equal Rights Amendment of the
Maryland Constitution, which protects against discrimination based on sex. The suit before Judge Murdock was
filed against court clerks in several Maryland jurisdictions for the refusal to issue civil marriage licenses to
same-gender couples. The ruling stated in part, When
tradition is the guise under which prejudice or animosity
hides, it is not a legitimate state interest. Judge Murdock further noted, The Court is not unaware of the
dramatic impact of its ruling, but it must not shy away
from deciding significant legal issues when fairly presented to it for judicial determination. As others assessing the constitutionality of preventing same-sex marriage note, justifying the continued application of a
classification through its past application is circular reasoning, not analysis, and that it is not persuasive.12 The
case will likely be appealed to the Court of Special Ap-

Entry Number 86-1

Page 9 of 19

peals (the states intermediate appellate court) or the


Court of Appeals (Marylands highest court).
The Maryland ruling resulted in a call from Governor
Robert Ehrlich, Jr for state lawmakers to pass a proposed
marriage-ban amendment. A bill seeking to send a state
constitutional amendment banning same-gender civil
marriage to the voters was stopped in the legislature a
short time thereafter, with vows from the sponsor to
revive the measure before the session adjournment.
The state supreme courts of Alaska13 and Montana14
have ruled that the domestic partners of gay and lesbian
civil employees must be granted the same benefits as the
spouses of married heterosexual employees. The decision in Alaska has prompted a move by Governor
Murkowski to seek a constitutional amendment aimed
at repealing the decision.
Other legal challenges to laws and policies prohibiting
same-gender civil marriage are pending in courts in California, Connecticut, New Jersey, New York, and Washington.
State Perspective: Adoption
Two terms are used, often interchangeably, although
they have different meanings, to describe the legal procedures by which same-gender couples adopt children.
Coparent adoption is a legal process that allows both
parents to adopt a child at the same time. Second-parent
adoption is a process whereby the partner of the biological or primary adoptive parent is allowed to adopt at a
later time.
Although gay and lesbian adults in many states have
adopted children, county-level judges ultimately make
final adoption decisions, and their opinions vary. Some
judges have been open to second-parent public adoptions but not to agency-based adoptions.
Gay and lesbian parents have adopted children at
least within certain counties of Alaska, California, Colorado, Connecticut, Delaware, District of Columbia, Illinois, Maryland, Massachusetts, Michigan, Minnesota,
New Hampshire, New Jersey, New Mexico, New York,
Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee,
Vermont, Washington, and Wisconsin.
Coparent adoption is recognized by statute in Califor-

nia, Connecticut, and Vermont. Appellate courts have


ruled that state adoption laws permit second-parent
adoption in California, District of Columbia, Illinois,
Indiana, Massachusetts, New Jersey, New York, and
Pennsylvania. The California decision was affirmed by
the state supreme court.
Florida law explicitly prohibits adoption by gay and

lesbian individuals and, by extension, same-gender


couples.
Mississippi prohibits same-gender couples from adop-

tion and second-parent adoption.


PEDIATRICS Volume 118, Number 1, July 2006

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

355

3:13-cv-02351-JMC

Date Filed 11/05/14

Oklahoma law prohibits the state, its agencies, and

courts from recognizing an adoption by more than 1


individual of the same gender from any other state or
foreign jurisdiction.
Utah forbids foster parenting and adoption by any

unmarried cohabiting couple, thereby excluding all


same-gender couples.
State court rulings in Colorado, Nebraska, Ohio, and

Wisconsin have not permitted second-parent adoption


by same-gender individuals.
Foster parenting by gay and lesbian individuals and/or

same-gender couples is prohibited in at least 3 states:


Arkansas, Nebraska, and Utah. In December 2004, an
Arkansas court declared unconstitutional the states
regulation prohibiting gay and lesbian foster parenting. The decision is currently under appeal.
Although not expressly forbidden by statute or regu-

lation, gay and lesbian individuals have been denied


the ability to apply for foster parenting as a result of
unwritten administrative policies of some state agencies. In February 2006, such a policy was overturned
in Missouri by a state judge, thereby ordering the state
to issue a foster parent license to individuals who pass
the necessary requirements regardless of sexual
orientation.
In early 2006, efforts were underway in at least 16
states (Alabama, Alaska, Arizona, Georgia, Indiana,
Kansas, Kentucky, Michigan, Missouri, Ohio, Oregon,
Pennsylvania, Tennessee, Utah, Vermont, and West Virginia) to introduce constitutional amendments prohibiting gay and lesbian individuals and couples from fostering or adopting children.
Federal Perspective
Federal DOMA
In 1996, the US Congress enacted the DOMA. The act
prohibits federal recognition of same-gender civil marriage and allows states to do the same. As noted above,
since 1996, many states have enacted related measures.
States have traditionally recognized marriages granted in
other states, even those that may not be in compliance
with the marriage laws of that particular state, because
of the full faith and credit clause of the US Constitution. This clause is primarily intended to provide for the
continuity between states and enforcement across state
lines of nonfederal laws, civil claims, and court rulings.
Constitutional Amendment Proposals
Civil marriage has traditionally been viewed as a matter
of state concern and regulation in the United States. The
Section 1 of Article 4 of the US Constitution reads, Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings
shall be proved, and the Effect thereof.

356

PAWELSKI et al

Entry Number 86-1

Page 10 of 19

Constitution does not mention marriage at any point.


However, in 2003, proposals to prohibit same-gender
civil marriage by amending the Constitution were introduced into Congress by Representative Marilyn Musgrave (R-CO) and Senator Wayne Allard (R-CO). In
2004, the Senate measure was killed after a procedural
vote to move the measure to the Senate floor for final
consideration failed, 48 to 50 (12 short of the 60 votes
required by Senate rules). Despite the measures defeat
in the Senate, the House of Representatives also scheduled a vote. The vote tally, 227 for and 186 against, fell
short of the 290 votes needed for approval.
Legislators and public-policy makers have come to
recognize pediatricians as credible and independent
sources of expertise on matters of child well-being and
family life. During the 2004 hearings on this measure,
individual pediatricians provided testimony focusing on
the well-being of children of same-gender parents and
on the potential benefits of civil marriage for these families.15,16
In 2005, 2 Senate joint resolutions17 and 1 House joint
resolution18 were introduced. All 3 measures would establish a new amendment to the US Constitution, often
referred to as the federal marriage amendment, that
defines marriage as the union of 1 man and 1 woman,
thereby prohibiting same-gender couples from marrying. President George W. Bush has frequently stated his
support for such an amendment.
Hearings on these bills have been held. Two pediatricians were invited to testify before the US Senate Judiciary Committee Subcommittee on the Constitution,
Civil Rights, and Property Rights on the matter of samegender couples, gay and lesbian parents, their children,
and the related rights, benefits, and protections of civil
marriage.19,20
In early 2006, Senate Majority Leader Bill Frist, MD
(R-TN), and Senator Rick Santorum (R-PA) announced
their intentions to bring the same-gender civil marriage
ban amendment to the floor for a vote by the full Senate.
The House Republican leadership also signaled the likelihood of a vote on that matter in the lower chamber.
An amendment to the US Constitution requires a two
thirds vote of approval by the US House and Senate and
ratification by three quarters of the states for passage.
EFFECTS OF PUBLIC POLICIES ON SAME-GENDER COUPLES
AND THEIR CHILDREN
Legal and Financial Effects
Civil marriage is a legal status through which societal
recognition and support are given to couples and families. It provides a context for legal, financial, and psychosocial well-being, an endorsement of interdependent
care, and a form of public acknowledgment and respect
for personal bonds. Opponents of same-gender civil marriage often suggest that the legal recognition afforded by

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

civil marriage for same-gender couples is unnecessary,


noting that all of the rights and protections that are
needed can be obtained by drawing up legal agreements
with an attorney. In reality, same-gender partners can
secure only a small number of very basic agreements,
such as power of attorney, naming the survivor in ones
will (at the risk of paying an inheritance tax, which does
not apply to heterosexual married couples), and protecting assets in a trust. Even these agreements, however,
represent only the best guesses of the legal community
and may not withstand challenges from extended family
members of the couple. Such challenges are not rare
given the lack of societal understanding and acceptance
of homosexuality and same-gender partnerships. Moreover, legal agreements cannot win for the couple and
their children access to the rights, benefits, and protections afforded by the federal and state governments to
heterosexual married couples.
As noted earlier, the Government Accountability Office has identified a total of 1138 federal statutory provisions classified to the US Code in which marital status
is a factor in determining or receiving rights, benefits,
and protections.7 In addition, there are numerous statebased programs, benefits, rights, and protections that are
based on marital status.
For same-gender couples and their children, enactment of marriage amendments halts the possibility of
obtaining many legal and financial rights, benefits, and
protections such as:
legal recognition of the couples commitment to and

responsibility for one another;


legal recognition of joint parenting rights when a child

is born or adopted;
legal recognition of a childs relationship to both par-

ents;
joint or coparent adoption (in most states);
second-parent adoption (in most states);
foster parenting (in some states);
eligibility for public housing and housing subsidies;
ability to own a home as tenants by the entirety (ie,

a special kind of property ownership for married couples through which both spouses have the right to
enjoy the entire property, and when one spouse dies,
the surviving spouse gets title to the property [in some
states]);
protection of marital home from creditors (in some

Entry Number 86-1

Page 11 of 19

couples by the Internal Revenue Service, which is not


the case for married heterosexual couples);
access to spouse benefits under Medicare and certain

Medicaid benefits (spouses are considered essential to


individuals receiving Medicaid benefits and, therefore, are eligible for medical assistance themselves;
family coverage programs would deny coverage to
same-gender partners and nonbiological/not-jointlyadopted children);
ability to enroll nonbiological/not-jointly-adopted

children in public and medical assistance programs;


ability of both parents to consent to medical care or

authorize emergency medical treatment for nonbiological/not-jointly-adopted children;


ability to make medical decisions for an incapacitated

or ailing partner;
recognition as next of kin for the purpose of visiting

partner or nonbiological/not-jointly-adopted child in


hospitals or other facilities;
ability to take advantage of the federal Family Medical

Leave Act to care for a sick partner or nonbiological/


not-jointly-adopted children;
ability to obtain life insurance (because of findings of

no insurable interest in ones partner or nonbiological/


not-jointly-adopted child);
ability to obtain joint homeowner and automobile

insurance policies and take advantage of family discounts;


recognition as an authority in educational settings to

register a child for school, be involved in a childs


education plan, and provide consent on waivers and
sign permission forms;
ability to travel with a child if it will require proof of

being a legal parent;


access to spousal benefits of workers compensation;
ability to file joint income tax returns and take advan-

tage of family-related deductions;


privilege afforded to married heterosexual couples

that protects one spouse from testifying against another in court;


immigration and residency privileges for partners and

children from other countries;


protections and compensation for families of crime

victims (state and federal programs);

states);
automatic financial decision-making authority on be-

half of ones partner;


access to employer-based health insurance and other

benefits for nonbiological/not-jointly-adopted children (considered a taxable benefit for same-gender

access to the courts for a legally structured means of

dissolution of the relationship (divorce is not recognized because marriage is not recognized);
visitation rights and/or custody of children after the

dissolution of a partnership;
PEDIATRICS Volume 118, Number 1, July 2006

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

357

3:13-cv-02351-JMC

Date Filed 11/05/14

childrens rights to financial support from and ongoing

relationships with both parents should the partnership


be dissolved;
legal standing of one partner if a child is removed from

the legal/adoptive parent and home by child protective services;


domestic violence protections such as restraining or-

ders;
automatic, tax- and penalty-free inheritance from a

deceased partner or parent of shared assets, property,


or personal items by the surviving partner and nonbiological/not-jointly-adopted children;
childrens right to maintain a relationship with a non-

biological/not-jointly-adopting parent in the event of


the death of the other parent;
surviving parents right to maintain custody of and

care for nonbiological/not-jointly-adopted children;


Social Security survivor benefits for a surviving part-

ner and children after the death of one partner;


exemptions from property tax increases in the event

of the death of a partner (offered in some states to


surviving spouses);
automatic access to pensions and other retirement

accounts by surviving partner;


access to deceased partners veterans benefits;
ability to roll deceased partners 401(k) funds into an

individual retirement account without paying up to


70% of it in taxes and penalties; and
right to sue for wrongful death of a deceased partner.

The Congressional Budget Office (CBO) determined


in 2004 that allowing civil marriage for same-gender
couples would have a positive effect on the federal budget.21 The CBO found that allowing same-gender couples
to marry would increase federal income tax revenues by
$400 million annually to the end of 2010, resulting
largely from the marriage penalty tax. Although Social
Security payments and spending on insurance coverage
for partners of federal workers would rise over time,
other expenditures such as Medicaid and Supplemental
Security Income would decrease. The net result would
be a savings of nearly $1 billion per year. The Williams
Institute, a think tank at the University of California Los
Angeles School of Law, had similar findings on the federal budget and for several state budgets.22

Psychosocial Effects
Because of the complex nature of the issues involved in
this sociopolitical debate, psychosocial effects can be
multifaceted. These effects can be observed at the personal, couple, parental, child, family, and even community levels.
358

PAWELSKI et al

Entry Number 86-1

Page 12 of 19

As children, many gay and lesbian persons experience


considerable isolation, peer rejection, ridicule, harassment, and/or depression at some time. At least 47% of
gay and lesbian teens have seriously considered suicide,
and 36% have actually attempted suicide.23 They may
experience rejection by their families, homelessness,
maltreatment in school, and violence. As adults, gay and
lesbian people continue to experience social marginalization, discrimination, and hate-crime violence.
Nationwide political and religious debate over samegender marriage has intensified an already unstable climate for gay men and lesbians in our society. The lack of
societal tolerance, acceptance, and support that gay and
lesbian individuals, couples, and their children experience can and does affect their psychosocial and physical
health and safety.
Indeed, the US Department of Justice, in its 1997
publication A Policymakers Guide to Hate Crimes, noted
that [a] host of factors may create a climate in which
people, motivated by their biases, take criminal action.
Such factors include poor or uncertain economic conditions, racial stereotypes in films and on television, hatefilled discourse on talk shows or in political advertisements, the use of racial code language such as welfare
mothers and inner city thugs, and an individuals personal experiences with members of particular minority
groups.24
Similarly, children whose parents are of the same
gender may experience social marginalization and become the objects of ridicule and harassment by other
children and adults who do not understand or who
disapprove of gay and lesbian parenting. Children experiencing this type of treatment may not know how to
seek, or where to find, support. Although same-gender
couples are raising children in 96% of all the counties in
the United States, support services and trusted individuals are not available in all of these areas. Efforts to
prohibit the establishment of student groups known as
gay-straight alliances in various school districts and
states may serve to worsen this situation.

PSYCHOSOCIAL CHARACTERISTICS OF GAY AND LESBIAN


PARENTS AND THEIR CHILDREN
Most children who have 1 or 2 gay or lesbian parents
were born in the context of a heterosexual relationship.
That relationship may still exist or may have been dissolved; if the latter, either or both partners may have
found new partners of the same or different gender.
More and more gay and lesbian adults are bringing
children into long-term partnerships through adoption,
alternative insemination, and surrogacy. Donors and
surrogates may be anonymous or involved with the
child and family to a greater or lesser degree.

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Parenting Attitudes and Behavior, Personality, and


Adjustment of Parents
Discriminatory practices are based on the assumption
that lesbian mothers and gay fathers are different from
heterosexual parents in ways that are detrimental to
their childrens well-being. However, few differences
have been found in research conducted over the last 3
decades comparing lesbian and heterosexual mothers
self-esteem, psychological adjustment, and attitudes toward child rearing.25,26 Lesbian mothers fall within the
range of normal psychological functioning on interviews
and psychological assessments, and report scores on
standardized measures of self-esteem, anxiety, depression, and parenting stress indistinguishable from those
reported by heterosexual mothers.27
Lesbian mothers strongly endorse child-centered attitudes and commitment to their maternal roles28 and
have been shown to be more concerned with providing
male role models for their children than are divorced
heterosexual mothers.29 Lesbian and heterosexual mothers describe themselves similarly in marital and maternal
interests, current lifestyles, and child-rearing practices.29
They report similar role conflicts, social support networks, and coping strategies.30,31
Empirical evidence reveals that gay fathers have substantial evidence of nurturance and investment in their
paternal role and no differences from heterosexual fathers in providing appropriate recreation or encouraging
autonomy. Gay fathers have been described to adhere to
strict disciplinary guidelines, to place an emphasis on
guidance and the development of cognitive skills, and to
be involved in their childrens activities.32,33 Overall,
there are more similarities than differences in the parenting styles and attitudes of gay and nongay fathers.34,35
Childrens Emotional and Social Development
Because most children whose parents are gay or lesbian
have experienced the divorce of their biological parents,
their subsequent psychological development has to be
understood in that context. Whether they are subsequently raised by 1 or 2 separated parents and whether
a stepparent has joined either of the biological parents
are important factors for children that have rarely been
addressed in research assessing psychological outcomes
for these children. Similarly missing is an analysis of the
role of the divorced noncustodial parent in the childs
life.
The considerable research literature that has accumulated addressing this issue has generally revealed that
children of divorced lesbian mothers grow up in ways
that are very similar to children of divorced heterosexual
mothers. Several studies comparing children who have a
lesbian mother with children who have a heterosexual
mother have failed to document any differences between such groups on personality measures, measures of
peer-group relationships, self-esteem, behavioral diffi-

Entry Number 86-1

Page 13 of 19

culties, academic success, or warmth and quality of family relationships.26,28,30,3638 Childrens self-esteem has
been shown to be higher among adolescents whose
mothers (of any sexual orientation) were in a new partnered relationship after divorce, compared with those
whose mothers remained single, and among those who
found out at a younger age that their parent was homosexual, compared with those who found out when they
were older.
Concern has been raised that social stigmatization
might lead to teasing and embarrassment for children
about their parents sexual orientation or their family
constellation and restrict their ability to form and maintain friendships. Adult children of divorced lesbian
mothers have recalled more teasing by peers during
childhood than have adult children of divorced heterosexual parents.39 In general, children whose parents are
gay or lesbian have been found to have normal relationships with childhood peers and to maintain social relationships appropriate for their developmental levels.23,27,36
Children born to and raised by lesbian couples seem
to develop in ways that are indistinguishable from children raised by heterosexual parents. Ratings by their
mothers and teachers have demonstrated childrens social competence and the prevalence of behavioral difficulties to be comparable with population norms.25,40 In
fact, growing up with parents who are lesbian or gay
may confer some advantages to children. They have
been described as more tolerant of diversity and more
nurturing toward younger children than children whose
parents are heterosexual.41,42
In one study, children of heterosexual parents saw
themselves as being somewhat more aggressive than did
children of lesbian parents, and they were seen by parents and teachers as more bossy, negative, and domineering. Children of lesbian parents saw themselves as
more lovable and were seen by parents and teachers as
more affectionate, responsive, and protective of younger
children, compared with children of heterosexual parents.30 In another investigation, children of lesbian parents reported their self-esteem to be similar to that of
children of heterosexual parents and saw themselves as
similar in aggressiveness and sociability.31
Early studies that attempted to evaluate the wellbeing of children whose parents are gay or lesbian encountered predictable challenges in sample selection,
sample size, investigator bias, and measurement.
Recent investigations have attempted to overcome
some of these challenges and clarify some factors that
promote optimal well-being of this growing population
of children. The adjustment of children who have 2
mothers seems to be related to their parents satisfaction
with their relationship and specifically with the division
of responsibility they have worked out with regard to
child care and household chores.43 Children with lesbian
PEDIATRICS Volume 118, Number 1, July 2006

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

359

3:13-cv-02351-JMC

Date Filed 11/05/14

parents who reported greater relationship satisfaction,


more egalitarian division of household and paid labor,44
and more regular contact with grandparents and other
relatives45 were rated by parents and teachers to be
better adjusted and to have fewer behavioral problems.
These findings are consistent with general knowledge
among students of child development, namely that
greater stability and nurturance within a family system
predicts greater security and fewer behavioral problems
among children.
Recent publications from 2 population-based samples
lend additional strength to earlier evidence demonstrating that childrens well-being is not threatened as a
result of growing up with lesbian parents.46,47 The importance of these studies is that the research was
planned and conducted by people who had no particular
interest or investment in research regarding same-gender parents. In both cases the investigations regarding
lesbian parents and their children were posthoc analyses; thus, neither the sample nor the methods were
influenced by a bias in support of gay parents.
The first of these community-based studies was based
on data from a cohort study of 14 000 mothers of children born within a particular county in England during
1 year. The study examined the quality of parent-child
relationships and socioemotional and gender development in a community sample of 57-year-old children
with lesbian mothers. Thirty-nine lesbian mother families were compared with 74 two-parent heterosexual
families and 60 families headed by single heterosexual
mothers.46 No differences were found in maternal
warmth, emotional involvement, enjoyment of motherhood, frequency of conflicts, supervision of the child,
abnormal behaviors reported by parents or teachers in
the child, childrens self-esteem, or psychiatric disorders.
In the same study, parents who raised children alone
reported greater stress, increased severity of parent-child
conflicts, and less warmth, enjoyment of parenting, and
imaginative play than did parents in a couple relationship, whether lesbian or heterosexual. Teachers reported
more behavioral problems among children in singleparent families than among children who had 2 parents
in the home irrespective of their sexual orientation.46
The second study used data from the National Longitudinal Study of Adolescent Health, a randomly selected,
nationally representative sample of 12 105 US adolescents in grades 7 through 12. The authors demonstrated
that 12- to 18-year-olds living with 2 women in a marriage-like family arrangement (n 44) were similar to
peers whose parents were heterosexual in measures of
self-esteem, depression, anxiety, school connectedness, and school success. Overall, adolescents reported
positive family relationships, including parental warmth,
care from others, personal autonomy, and neighborhood
integration, and there were no systematic differences
360

PAWELSKI et al

Entry Number 86-1

Page 14 of 19

between the same-gender and opposite-gender parent


families.47
Research exploring the diversity of parental relationships among gay and lesbian partners is just beginning.
The legalization of same-gender marriage in Massachusetts in 2004 offers the first true opportunity to study
how same-gender marriage affects family life and child
development. In addition to the findings discussed
above, current research on same-gender couples who
have been able to jointly adopt and establish legal ties
between children and both parents suggests that legal
recognition of same-gender marriage may strengthen
ties between partners, their children, and their extended
families.48,49
Childrens Gender Identity and Sexual Orientation
The gender identity of preadolescent children raised by
lesbian mothers has been found consistently to be in line
with their biological gender. None of 500 children
studied have shown evidence of gender-identity confusion, wished to be the other gender, or consistently
engaged in cross-gender behavior. No differences have
been found in the toy, game, activity, dress, or friendship
preferences of boys or girls who had lesbian mothers,
compared with those who had heterosexual mothers.31,34,5052
Compared with young adults who had heterosexual
mothers, men and women who had lesbian mothers
were slightly more likely to consider the possibility of
having a same-gender partner,36 but in each group similar proportions of adult men and women identified
themselves as homosexual. Another study reports no
significant differences in gender development for either
boys or girls according to the mothers sexual orientation.34,53 Using data from a national sample of adolescents, no difference was found on the basis of whether
the parents were the same or different genders in the
proportion of adolescents who reported having had sexual intercourse, nor was a difference found in the number who reported having a romantic relationship
within the past 18 months. So few adolescents in either
group reported same-gender attractions or same-gender
romantic relationships that a statistical comparison was
not possible.47 A long-term follow-up of adolescents
raised by single lesbian mothers after divorce revealed
similarly that their gender-role orientation (level of masculinity or femininity) was similar to those who were
raised by a single heterosexual mother after divorce or
by a heterosexual couple. Boys from single heterosexual
mother and lesbian mother families scored higher on the
scale of femininity, but they did not differ on the score of
masculinity.54
There are scant data about the gender identity of
adult children of gay fathers. In the most extensive study
available, 9% of sons of gay fathers identified as bisexual
or homosexual in orientation.23,50

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

COMMENTARY
In all its work, the AAP is committed to calling attention
to the inextricable link between the health and wellbeing of all children, the support and encouragement of
all parents, and the protection of strong family relationships. This analysis was prepared to bring to light the
legal, financial, and psychosocial ramifications of recent
and proposed public-policy initiatives affecting samegender parents and their children.
Civil marriage is a legal status that promotes healthy
families by conferring a powerful set of rights, benefits,
and protections that cannot be obtained by other means.
Civil marriage can help foster financial and legal security, psychosocial stability, and an augmented sense of
societal acceptance and support. Legal recognition of a
spouse can increase the ability of adult couples to provide and care for one another and fosters a nurturing
and secure environment for their children. Children
who are raised by civilly married parents benefit from
the legal status granted to their parents.
Gay and lesbian people have been raising children for
many years and will continue to do so in the future; the
issue is whether these children will be raised by parents
who have the rights, benefits, and protections of civil marriage. Same-gender couples are denied the right to civil
marriage in every state except Massachusetts and the right
to civil union except in Connecticut and Vermont. The
federal government and other state governments do not
recognize those civil marriages and civil unions.
There is ample evidence to show that children raised
by same-gender parents fare as well as those raised by
heterosexual parents. More than 25 years of research
have documented that there is no relationship between
parents sexual orientation and any measure of a childs
emotional, psychosocial, and behavioral adjustment.
These data have demonstrated no risk to children as a
result of growing up in a family with 1 or more gay parents.
Conscientious and nurturing adults, whether they are men
or women, heterosexual or homosexual, can be excellent
parents. The rights, benefits, and protections of civil marriage can further strengthen these families.
AAP POLICIES AND RESOURCES
The AAP issued its first statement on homosexuality and
adolescents in 1983. Since that time, other AAP publications and resources have been developed that enable
pediatricians and other professionals, as well as parents
and their children, to understand, address, and support
the needs of youth of differing sexual orientations.
Coparent or Second-Parent Adoption by Same-Sex Parents
Policy Statement
Committee on Psychosocial Aspects of Child and Family
Health
Pediatrics. 2002;109:339 340

Entry Number 86-1

Page 15 of 19

Available at: http://aappolicy.aappublications.org/cgi/


content/full/pediatrics%3b109/2/339
Abstract: Children who are born to or adopted by 1
member of a same-sex couple deserve the security of 2
legally recognized parents. Therefore, the American
Academy of Pediatrics supports legislative and legal efforts to provide the possibility of adoption of the child by
the second parent or coparent in these families.
Coparent or Second-Parent Adoption by Same-Sex Parents
Technical Report
Perrin EC; Committee on Psychosocial Aspects of Child
and Family Health
Pediatrics. 2002;109:341344
Available at: www.pediatrics.org/cgi/content/full/109/
2/341
Abstract: A growing body of scientific literature demonstrates that children who grow up with 1 or 2 gay and/or
lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual. Childrens optimal development
seems to be influenced more by the nature of the relationships and interactions within the family unit than by
the particular structural form it takes.
Sexual Orientation and Adolescents
Clinical Report
Frankowski BL; Committee on Adolescence
Pediatrics. 2004;113:18271832
Available at: www.pediatrics.org/cgi/content/full/113/
6/1827
Abstract: The American Academy of Pediatrics issued its
first statement on homosexuality and adolescents in
1983, with a revision in 1993. This report reflects the
growing understanding of youth of differing sexual orientations. Young people are recognizing their sexual
orientation earlier than in the past, making this a topic of
importance to pediatricians. Pediatricians should be
aware that some youths in their care may have concerns
about their sexual orientation or that of siblings, friends,
parents, relatives, or others. Health care professionals
should provide factual, current, nonjudgmental information in a confidential manner. All youths, including
those who know or wonder whether they are not heterosexual, may seek information from physicians about
sexual orientation, sexually transmitted diseases, substance abuse, or various psychosocial difficulties. The
pediatrician should be attentive to various potential psychosocial difficulties, offer counseling or refer for counseling when necessary and ensure that every sexually
active youth receives a thorough medical history, physical examination, immunizations, appropriate laboratory
tests, and counseling about sexually transmitted diseases
(including human immunodeficiency virus infection)
and appropriate treatment if necessary.
PEDIATRICS Volume 118, Number 1, July 2006

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

361

3:13-cv-02351-JMC

Date Filed 11/05/14

Gay, Lesbian, and Bisexual Teens: Facts for Teens and Their
Parents
Patient Education Brochure
Sponsoring Committee: Committee on Adolescence
2001
Available at: www.aap.org/bst/showdetl.cfm?&DID
15&ProductID3823
Gay, Lesbian or Bisexual Parents: Information for Children and
Parents
Patient Education Brochure
Sponsoring Committee: Committee on Practice and Ambulatory Medicine
2005
Available at: www.aap.org/bst/showdetl.cfm?&DID
15&ProductID4133
Available Technical Assistance
Committee on Adolescence (COA)
Committee on Early Childhood, Adoption, and Dependent Care (COECADC)
Committee on Federal Government Affairs (COFGA)
Committee on Practice and Ambulatory Medicine
(COPAM)
Committee on Psychosocial Aspects of Child and Family
Health (COPACFH)
Committee on State Government Affairs (COSGA)
Section on Adoption and Foster Care (SOAFC)
Department of Federal Affairs
Division of Developmental Pediatrics and Preventive
Services
Division of Health Care Finance and Practice
Division of State Government Affairs
RELATED PROFESSIONAL ORGANIZATION STATEMENTS AND
POLICIES
The AAP is not alone in supporting the right of every
child and family to the legal, financial, and psychosocial
security that results from having legally recognized parents who are committed to each other and to the welfare
of their children.
The American Academy of Family Physicians Congress of Delegates agreed to establish policy and be
supportive of legislation which promotes a safe and nurturing environment, including psychological and legal
security, for all children, including those of adoptive
parents, regardless of the parents sexual orientation.55
The American Psychological Association (APA)
adopted resolutions stating that the APA believes that it
is unfair and discriminatory to deny same-sex couples
legal access to civil marriage and to all its attendant
benefits, rights, and privileges . . . and shall take a leadership role in opposing all discrimination in legal benefits, rights, and privileges against same-sex couples.56,57
The APA opposes any discrimination based on sexual
362

PAWELSKI et al

Entry Number 86-1

Page 16 of 19

orientation in matters of adoption, child custody and


visitation, foster care, and reproductive health services;
believes that children raised by a same-sex couple benefit from legal ties to each parent; supports the protection of parent-child relationships through the legalization of joint adoptions and second parent adoptions of
children being raised by same-sex couples; and shall take
a leadership role in opposing all discrimination based on
sexual orientation in matters of adoption, child custody
and visitation, foster care, and reproductive health services.56,57
The American Psychoanalytic Association position
states, Accumulated evidence suggests the best interest
of the child requires attachment to committed, nurturing and competent parents. Evaluation of an individual
or couple for these parental qualities should be determined without prejudice regarding sexual orientation.
Gay and lesbian individuals and couples are capable of
meeting the best interest of the child and should be
afforded the same rights and should accept the same
responsibilities as heterosexual parents.58
The National Association of Social Workers (NASW)
encourages the adoption of laws that recognize inheritance, insurance, same-sex marriage, child custody,
property, and other relationship rights for lesbians, gay,
and bisexual people. NASW supports the adoption of
local, state, federal and international policies/legislation
that protect the rights and well-being of the children of
lesbian, gay, and bisexual people.59
Related policy from the American Academy of Child
and Adolescent Psychiatry (AACAP) states, The basis on
which all decisions relating to custody and parental
rights should rest [is] on the best interest of the child.
Lesbian, gay, and bisexual individuals historically have
faced more rigorous scrutiny than heterosexuals regarding their rights to be or become parents. There is no
evidence to suggest or support that parents with a gay,
lesbian, or bisexual orientation are per se different from
or deficient in parenting skills, child-centered concerns
and parent-child attachments, when compared with parents with a heterosexual orientation. It has long been
established that a homosexual orientation is not related
to psychopathology, and there is no basis on which to
assume that a parental homosexual orientation will increase likelihood of or induce a homosexual orientation
in the child. Outcome studies of children raised by parents with a homosexual or bisexual orientation, when
compared with heterosexual parents, show no greater
degree of instability in the parental relationship or developmental dysfunction in children. The AACAP opposes any discrimination based on sexual orientation
against individuals in regard to their rights as custodial
or adoptive parents.60
In June 2005, the American Medical Association
(AMA) House of Delegates overwhelmingly endorsed a
policy that calls on the AMA to support legislation and

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

other efforts to allow adoption of a child by the same-sex


partner or an opposite-sex non-married partner who
functions as a second parent or co-parent to that child.
On the matter of same-gender marriage, in May 2005
the Assembly of the American Psychiatric Association
(APA) approved a statement in support of legalizing
same-gender marriage. Approval by the organizations
board of directors in July 2005 made psychiatry the first
medical specialty to publicly support same-gender civil
marriage. Specifically, the APA policy states, In the
interest of maintaining and promoting mental health,
the American Psychiatric Association supports the legal
recognition of same-sex civil marriage with all rights,
benefits, and responsibilities conferred by civil marriage,
and opposes restrictions to those same rights, benefits,
and responsibilities.61

Entry Number 86-1

15.

16.

17.
18.
19.

20.

REFERENCES
1. US Census Bureau. Selected characteristics from 1990 to supplement Census 2000 SF1 unmarried partner households.
Available at: www2.census.gov/census1990/other/90partners.
txt. Accessed March 7, 2006
2. US Census Bureau. Married-couple and unmarried-partner
households: 2000 Census 2000 special reports. Available at:
www.census.gov/prod/2003pubs/censr-5.pdf. Accessed March
7, 2006
3. US Census Bureau, Population Division, Fertility & Family
Statistics Branch. Technical note on same-sex unmarried partner data from the 1990 and 2000 censuses. Available at:
www.census.gov/population/www/cen2000/samesex.html.
Accessed March 7, 2006
4. Badgett MVL, Rodgers MA. Left out of the Count: Missing Same-Sex
Couples in Census 2000. Amherst, MA. Institute for Gay and
Lesbian Strategic Studies; 2003. Available at: www.iglss.org/
media/files/c2kleftout.pdf. Accessed March 15, 2006
5. Patterson CJ, Friel LV. Sexual orientation and fertility. In:
Bentley G, Mascie-Taylor N, eds. Infertility in the Modern World.
Cambridge, England: Cambridge University Press; 2000
6. Editors of Harvard Law Review. Sexual Orientation and the Law.
Cambridge, MA: Harvard University Press; 1990
7. Shah DK, US General Accounting Office. Defense of Marriage
Act: update to prior report [letter]. Available at: www.gao.gov/
new.items/d04353r.pdf. Accessed May 10, 2005
8. Citizens for Equal Protection, Inc v Bruning, No. 4:03CV3155 (D
Neb May 12, 2005). Available at: www.nebar.com/pdfs/
DCOpinPDFs/4-03cv3155.pdf. Accessed February 8, 2006
9. Cox M. Constitutionality of city providing same-sex domestic
partnership benefits: opinion No. 7171. Available at: www.
ag.state.mi.us/opinion/datafiles/2000s/op10247.htm. Accessed
January 18, 2006
10. National Pride at Work v Granholm, No. 05-368-CZ (Ingham
County, Mich, Cir Ct, September 27, 2005)
11. Associated Press. Rulings differ in domestic violence. Cincinnati
Post Online Edition. Available at: www.cincypost.com/2005/03/
28/law03-28-2005.html. Accessed May 18, 2006
12. Deane and Polyak v Conaway, No. 24-C-04-005390 (Baltimore
City, Md, Cir Ct, January 20, 2006). Available at: www.baltocts.
state.md.us/civil/highlightedtrials/Memorandum.pdf. Accessed March 13, 2006
13. Alaska Civil Liberties Union v State of Alaska, No. 5950 (Alaska
Sup Ct, October 28, 2005). Available at: www.aclu.org/
FilesPDFs/alaskadecision.pdf. Accessed May 19, 2006
14. Snetsinger v Montana University System, No. 03-238 (Mont Sup

21.

22.

23.
24.

25.

26.

27.

28.

29.

30.
31.

32.

Page 17 of 19

Ct, December 30, 2004 MT 390). Available at: www.lawlibrary.


state.mt.us/dscgi/ds.py/Get/File-38180/03-238.pdf. Accessed
March 9, 2006
Perrin EC. Testimony submitted to the US Senate Subcommittee on the Constitution. 2004. Available at: www.hrc.org/
Content/ContentGroups/Legislation/FederalMarriage
Amendment/TestimonyMarch32004/EllenPerrin,MD.htm.
Accessed May 19, 2006
Joseph JG. Testimony before the US House of Representatives
Subcommittee on the Constitution. Available at: http://
judiciary.house.gov/OversightTestimony.aspx?ID176. Accessed June 14, 2005
Senate Joint Resolution 1, Senate Joint Resolution 13. Available at: http://thomas.loc.gov. Accessed May 22, 2006
House Joint Resolution 39. Available at: http://thomas.loc.gov.
Accessed May 22, 2006
Moltz K. Testimony before the US Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights. Available at: www.aclu.org/LesbianGayRights/LesbianGayRights.
cfm?ID17992&c100. Accessed February 15, 2006
Harris CE. An examination of the Constitutional amendment
on marriage: testimony before the United States Senate Committee on the Judiciary, Subcommittee on the Constitution,
Civil Rights, and Property Rights. Available at: http://
judiciary.senate.gov/testimony.cfm?id1641&witid4718.
Accessed February 15, 2006
Holtz-Eakin D, Congressional Budget Office. The potential
budgetary impact of recognizing same-sex marriages [letter].
Available at: www.cbo.gov/showdoc.cfm?index5559&
sequence0. Accessed June 16, 2005
The Williams Institute. UCLA School of Law. Available at:
www.law.ucla.edu/williamsinstitute/publications/PolicyEcon-index.html. Accessed May 19, 2006
Perrin EC. Sexual Orientation in Child and Adolescent Health Care.
New York, NY: Kluwer Academic/Plenum Publishers; 2002
Office of Justice Programs. A Policymakers Guide to Hate Crimes.
Washington, DC: United States Department of Justice; 1997.
Available at: www.ncjrs.org/txtfiles1/bja/162304.txt. Accessed
June 20, 2005
Flaks DK, Ficher I, Masterpasqua F, Joseph G. Lesbians choosing motherhood: a comparative study of lesbian and heterosexual parents and their children. Dev Psychol. 1995;31:
105114
Green R, Mandel JB, Hotvedt ME, Gray J, Smith L. Lesbian
mothers and their children: a comparison with solo parent
heterosexual mothers and their children. Arch Sex Behav. 1986;
15:167184
Golombok S, Tasker F, Murray C. Children raised in fatherless
families from infancy: family relationships and the socioemotional development of children of lesbian and single heterosexual mothers. J Child Psychol Psychiatry. 1997;38:783791
Golombok S, Spencer A, Rutter M. Children in lesbian and
single-parent households: psychosexual and psychiatric appraisal. J Child Psychol Psychiatry. 1983;24:551572
Kirkpatrick M, Smith C, Roy R. Lesbian mothers and their
children: a comparative survey. Am J Orthopsychiatry. 1981;51:
545551
Patterson CJ. Children of lesbian and gay parents. Adv Clin
Child Psychol. 1997;19:235282
Patterson CJ. Children of the lesbian baby boom: behavioral
adjustment, self-concepts, and sex role identity. In: Greene B,
Herek GM, eds. Lesbian and Gay Psychology: Theory, Research, and
Clinical Applications. Thousand Oaks, CA: Sage Publications;
1994:156 175
Patterson CJ, Chan RW. Gay fathers and their children. In:
Cabaj RP, Stein TS, eds. Homosexuality and Mental Health: A

PEDIATRICS Volume 118, Number 1, July 2006

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

363

3:13-cv-02351-JMC

33.

34.
35.

36.
37.

38.
39.
40.

41.

42.
43.

44.

45.

46.
47.

48.

364

Date Filed 11/05/14

Comprehensive Textbook. Washington, DC: American Psychiatric


Press; 1996:371393
Barrett H, Tasker F. Growing up with a gay parent: views of
101 gay fathers on their sons and daughters experiences. Educ
Child Psychol. 2001;18:6277
Tasker FL. Lesbian mothers, gay fathers, and their children: a
review. J Dev Behav Pediatr. 2005;26:224 240
Barret RL, Robinson BE. Gay Fathers: Encouraging the Hearts of
Gay Dads and Their Families. San Francisco, CA: Josey-Bass;
2000
Tasker FL, Golombok S. Growing Up in a Lesbian Family: Effects
on Child Development. New York, NY: Guilford Press; 1997
Allen M, Burrell N. Comparing the impact of homosexual and
heterosexual parents on children: meta-analysis of existing
research. J Homosex. 1996;32:19 35
Tasker FL. Children in lesbian-led families: a review. Clin Child
Psychol Psychiatry. 1999;4:153166
Tasker FL, Golombok S. Adults raised as children in lesbian
families. Am J Orthopsychiatry. 1995;65:203215
Patterson CJ. The family lives of children born to lesbian mothers. In: Patterson CJ, DAugelli AR, eds. Lesbian, Gay, and
Bisexual Identities in Families: Psychological Perspectives. New York,
NY: Oxford University Press; 1998:154 176
Steckel A. Psychosocial development of children of lesbian
mothers. In: Bozett FW, ed. Gay and Lesbian Parents. New York,
NY: Praeger; 1987:75 85
Stacey J, Biblarz TJ. (How) does the sexual orientation of
parents matter? Am Sociol Rev. 2001;66:159 183
Patterson CJ. Families of the lesbian baby boom: parents division of labor and childrens adjustment. Dev Psychol. 1995;31:
115123
Chan RW, Brooks RC, Raboy B, Patterson CJ. Division of labor
among lesbian and heterosexual parents: associations with
childrens adjustment. J Fam Psychol. 1998;12:402 419
Patterson CJ, Hurt S, Mason CD. Families of the lesbian baby
boom: childrens contact with grandparents and other adults.
Am J Orthopsychiatry. 1998;68:390 399
Golombok S, Perry B, Burston A, et al. Children with lesbian
parents: a community study. Dev Psychol. 2003;39:20 33
Wainright J, Russell S, Patterson C. Psychosocial adjustment,
school outcomes, and romantic relationships of adolescents
with same-sex parents. Child Dev. 2004;75:1886 1898
Oswald RF, Patterson CJ, Kuvalanka KA. NCFR Fact Sheet:
Same-Sex Marriage. Minneapolis, MN: National Council on

PAWELSKI et al

Entry Number 86-1

49.

50.
51.
52.
53.

54.

55.

56.

57.

58.

59.

60.

61.

Page 18 of 19

Family Relations; 2004. Available at: www.ncfr.org/pdf/


SameSexMarriageFactSheet.pdf. Accessed May 24, 2005
Gartrel N, Banks A, Hamilton J, Reed N, Bishop H, Rodas C.
The national lesbian family study II: interviews with mothers
and toddlers. Am J Orthopsychiatry. 1999;69:362369
Bailey JM, Bobrow D, Wolfe M, Mikach S. Sexual orientation
of adult sons of gay fathers. Dev Psychol. 1995;31:124 129
Gottman JS. Children of gay and lesbian parents. Marriage Fam
Rev. 1989;14:177196
Patterson CJ. Children of lesbian and gay parents. Child Dev.
1992;63:10251042
Brewaeys A, Ponjaert I, Van Hall EV, Golombok S. Donor
insemination: child development and family functioning in
lesbian mother families. Hum Reprod. 1997;12:1349 1359
MacCallum F. Adolescents raised in lesbian mother families:
findings from a longitudinal study. Presented at: the biennial
meeting of the Society for Research in Child Development;
April 7, 2005; Atlanta, GA
Stoever J. Delegates vote for adoption policy. Available at:
www.aafp.org/fpr/assembly2002/1017/7.html. Accessed February 16, 2006
American Psychological Association. Resolution on sexual orientation and marriage. Available at: www.apa.org/pi/lgbc/
policy/marriage.pdf. Accessed February 16, 2006
American Psychological Association. Resolution on sexual orientation, parents and children. Available at: www.apa.org/pi/
lgbc/policy/parentschildren.pdf. Accessed February 16, 2006
American Psychoanalytic Association, Committee on Gay and
Lesbian Issues. Position statement on gay and lesbian parenting. Available at: www.apsa.org/ctf/cgli/parenting.htm. Accessed February 16, 2006
National Association of Social Workers. Gay, lesbian and bisexual issues policy. Available at: www.socialworkers.org/da/
da2005/policies0505/documents/lgbissues.pdf. Accessed May
19, 2006
American Academy of Child and Adolescent Psychiatry. Policy
statement: gay, lesbian, and bisexual parents. Available at:
www.aacap.org/publications/policy/ps46.htm. Accessed February 21, 2006
American Psychiatric Association. Support of legal recognition
of same-sex civil marriage: position statement. Available at:
www.psych.org/edu/otherres/libarchives/archives/200502.
pdf. Accessed February 21, 2006

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-1

Page 19 of 19

The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the
Health and Well-being of Children
James G. Pawelski, Ellen C. Perrin, Jane M. Foy, Carole E. Allen, James E. Crawford,
Mark Del Monte, Miriam Kaufman, Jonathan D. Klein, Karen Smith, Sarah Springer,
J. Lane Tanner and Dennis L. Vickers
Pediatrics 2006;118;349
DOI: 10.1542/peds.2006-1279
Updated Information &
Services

including high resolution figures, can be found at:


http://pediatrics.aappublications.org/content/118/1/349.full.ht
ml

References

This article cites 22 articles, 2 of which can be accessed free


at:
http://pediatrics.aappublications.org/content/118/1/349.full.ht
ml#ref-list-1

Citations

This article has been cited by 17 HighWire-hosted articles:


http://pediatrics.aappublications.org/content/118/1/349.full.ht
ml#related-urls

Post-Publication
Peer Reviews (P3Rs)

4 P3Rs have been posted to this article


http://pediatrics.aappublications.org/cgi/eletters/118/1/349

Subspecialty Collections

This article, along with others on similar topics, appears in


the following collection(s):
Development/Behavioral Issues
http://pediatrics.aappublications.org/cgi/collection/developme
nt:behavioral_issues_sub
Psychosocial Issues
http://pediatrics.aappublications.org/cgi/collection/psychosoci
al_issues_sub

Permissions & Licensing

Information about reproducing this article in parts (figures,


tables) or in its entirety can be found online at:
http://pediatrics.aappublications.org/site/misc/Permissions.xht
ml

Reprints

Information about ordering reprints can be found online:


http://pediatrics.aappublications.org/site/misc/reprints.xhtml

PEDIATRICS is the official journal of the American Academy of Pediatrics. A monthly


publication, it has been published continuously since 1948. PEDIATRICS is owned, published,
and trademarked by the American Academy of Pediatrics, 141 Northwest Point Boulevard, Elk
Grove Village, Illinois, 60007. Copyright 2006 by the American Academy of Pediatrics. All
rights reserved. Print ISSN: 0031-4005. Online ISSN: 1098-4275.

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 1 of 13

Perrin & Siegel


Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian,
(2013)

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 2 of 13

Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian


Ellen C. Perrin, Benjamin S. Siegel and the COMMITTEE ON PSYCHOSOCIAL
ASPECTS OF CHILD AND FAMILY HEALTH
Pediatrics; originally published online March 20, 2013;
DOI: 10.1542/peds.2013-0377

The online version of this article, along with updated information and services, is
located on the World Wide Web at:
http://pediatrics.aappublications.org/content/early/2013/03/18/peds.2013-0377

PEDIATRICS is the official journal of the American Academy of Pediatrics. A monthly


publication, it has been published continuously since 1948. PEDIATRICS is owned,
published, and trademarked by the American Academy of Pediatrics, 141 Northwest Point
Boulevard, Elk Grove Village, Illinois, 60007. Copyright 2013 by the American Academy
of Pediatrics. All rights reserved. Print ISSN: 0031-4005. Online ISSN: 1098-4275.

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 3 of 13

TECHNICAL REPORT

Promoting the Well-Being of Children Whose Parents Are


Gay or Lesbian
abstract
Extensive data available from more than 30 years of research reveal
that children raised by gay and lesbian parents have demonstrated
resilience with regard to social, psychological, and sexual health despite economic and legal disparities and social stigma. Many studies
have demonstrated that childrens well-being is affected much more
by their relationships with their parents, their parents sense of
competence and security, and the presence of social and economic
support for the family than by the gender or the sexual orientation of
their parents. Lack of opportunity for same-gender couples to marry
adds to families stress, which affects the health and welfare of all
household members. Because marriage strengthens families and, in
so doing, benets childrens development, children should not be
deprived of the opportunity for their parents to be married. Paths
to parenthood that include assisted reproductive techniques, adoption, and foster parenting should focus on competency of the
parents rather than their sexual orientation. Pediatrics 2013;131:
e1374e1383

Ellen C. Perrin, MD, MA, Benjamin S. Siegel, MD, and the


COMMITTEE ON PSYCHOSOCIAL ASPECTS OF CHILD AND
FAMILY HEALTH
KEY WORDS
civil marriage, adoption, foster care, nurturing children, gay
parents, lesbian parents, health disparities, legal disparities,
same sex, same gender, marriage equality
This document is copyrighted and is property of the American
Academy of Pediatrics and its Board of Directors. All authors
have led conict of interest statements with the American
Academy of Pediatrics. Any conicts have been resolved through
a process approved by the Board of Directors. The American
Academy of Pediatrics has neither solicited nor accepted any
commercial involvement in the development of the content of
this publication.
The guidance in this report does not indicate an exclusive
course of treatment or serve as a standard of medical care.
Variations, taking into account individual circumstances, may be
appropriate.
All technical reports from the American Academy of Pediatrics
automatically expire 5 years after publication unless reafrmed,
revised, or retired at or before that time.

INTRODUCTION
The mission of the American Academy of Pediatrics (AAP) is to promote
optimal physical, mental, and social health and well-being for all infants, children, adolescents, and young adults. Historically, the AAP
has worked, through its educational, research, advocacy, and policy
efforts, to highlight the powerful connection between childrens wellbeing and the functioning of their most enduring source of support and
inuencetheir parents. It is vital that pediatricians understand the
unique and complex characteristics of their patients families and
support them to ensure optimal development of children.

www.pediatrics.org/cgi/doi/10.1542/peds.2013-0377
doi:10.1542/peds.2013-0377
PEDIATRICS (ISSN Numbers: Print, 0031-4005; Online, 1098-4275).
Copyright 2013 by the American Academy of Pediatrics

All children have the same needs for, and the right to, nurturing,
security, and social stability. Children whose parents are gay and lesbian have historically been subjected to laws, social policies, and
disapproving attitudes that create social distance and ostracism and
challenge the stability of their families as well as their optimal social
and psychological development. This technical report provides the
scientic rationale, based on the current available evidence, to support
the recommendations outlined in the policy statement Promoting
the Well-Being of Children Whose Parents are Gay or Lesbian1: support for marriage equality, including repeal of the federal Defense of
e1374

FROM THE AMERICAN ACADEMY OF PEDIATRICS

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 4 of 13

FROM THE AMERICAN ACADEMY OF PEDIATRICS

Marriage Act and similar public policies that limit access to federal benets associated with civil marriage
for gay and lesbian couples, and the
right of gay and lesbian adults to
adopt and provide foster care for eligible children.
Children depend on their parents for
guidance, nurturing, protection, support, and love. Their resiliency derives
from their sense of permanence, security, and unconditional attachment.
As a consequence of this central value
to their children, modern societies have
developed the legal and social contract
of marriage to ensure the permanent
commitment of parents to each other
and to their children, and thus to
provide an optimal environment for
children to thrive. The value of children
to society is reected also in the many
public policies and programs that are
designed to ensure adequate resources
and support to parents who are raising
a child alone, by choice or circumstance, and to families that because of
physical or mental illness, abuse, neglect, and/or nancial difculty, cannot
function successfully in their capacity
as parents. Families created by gay and
lesbian adults are no exception to these
broad social policies.
Because of the value of marriage to the
society, there are few legal restrictions
on who can marry. The only legal limitations to marriage equality for consenting adults in the United States are
for adults who are certied as mentally/
emotionally incompetent, for whom
marriage would lead to a polygamous
relationship, who are of minor age, who
are related by blood, or who are the
same gender (in a majority of the
states). Even a history of child abuse,
domestic violence, or other criminal
activity does not disqualify adults from
civil marriage. Despite conicts based
on individuals political and religious
beliefs, it is important to recognize that
laws restricting competent adults of

the same gender from codifying their


commitment to each other and their
children via civil marriage may result
not only in pain and hardship for
their children but also in legal, economic, psychological, social, and
health disparities that can no longer
be justied.

DIVERSE FAMILIES
The 2003 report of the AAP Task Force
on the Family stated that: No particular family constellation makes poor
or good outcomes for children inevitable.2 The report continued: A
stable, well-functioning family that
consists of 2 parents and children is
potentially the most secure, supportive, and nurturing environment in
which children may be raised. That
children can be successfully brought
to adulthood without this basic functioning unit is a tribute to those involved who have developed the skill
and resiliency to overcome a difcult
and fundamental challenge.2
Families are diverse, complex, and
changing. Most US public policy is built
on the presumption that the majority of
families are composed of a married
mother and father raising their biological children. In contrast, the 2010
US Census revealed that the proportion
of children living with 2 married biological parents had declined to 65.3%,
down from 69.2% in 2001.3 See Table 1
for further elucidation of family types
based on the 2010 Census.
Determining the number of children
being raised by lesbian and gay parents
is challenging, because most surveys

do not ask about parents sexual orientation. Starting with the 2000 Census, gay and lesbian couples have had
the option to identify themselves as
spouses.4 The 2010 Census identied
131 729 self-reported married samegender households and 514 735 samegender unmarried partner households
located in essentially all counties of
the United States.46
Thirty-one percent of same-gender
couples who identied as spouses
and 14% of those who identied as
unmarried partners indicated that they
were raising children, more than 111 000
in all.5 In addition to these parents,
many single gay men and lesbians are
also raising children. Combined, current estimates suggest that almost 2
million children younger than 18
years are being raised by at least 1
gay or lesbian parent in the United
States.6,7
Families with a gay or lesbian parent
(or parents) are, themselves, a diverse
group.8,9 For example, 55% to 59% of
same-gender couples with children
identify as white compared with 70%
to 73% of married heterosexual couples with children.7 Same-gender couples, like heterosexual couples, may
become parents by having children in
previous heterosexual relationships or
through fostering, adoption, donor insemination, and/or surrogacy.10

LEGAL DISPARITIES CREATED BY


STATE LAWS
Regulations and laws about the rights
and responsibilities of parenthood are
primarily state specic, resulting in

TABLE 1 Children in the United States 2010: Family Status


Family Status
Children
Children
Children
Children
Children
a

in 2-parent households
with married parents living together
with unmarried parents
with single/separated parents
being raised by 1 or more grandparents

Number of Children
(Millions)a

Children in the
United States, %

51.456
48.516
2.940
20.263
2.595

73.0
65.3
3.9
27.1
3.5

Total number of children in the United States: 74.630 million.

PEDIATRICS Volume 131, Number 4, April 2013

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

e1375

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

great variability among the states.


Many legal and social disparities exist
for same-gender couples and their
children.11

as a legal parent or step-parent to


the child(ren) she or he is helping
raise. In the majority of states, this
is not a legal option.

 A critical disparity for children of

 In the United States (but not in

unmarried parents is the absence


of the protections reected in divorce law. Thus, in the event of the
dissolution of the couples relationship, these families lack the
protections that exist for children
whose parents are married, such
as:

much of Europe), sperm and egg


donors may choose to remain
anonymous and take on no legal
responsibility for any children
born. In a few states, a donor
may be considered a legally recognized parent and have related responsibilities. A few states have
laws ensuring that both parents
are legally recognized as presumed parents of the child.

1. Access to the courts for a legally


structured arrangement for dissolution of the relationship;
2. A court-approved legal arrangement for visitation rights and/
or custody of children; and

 Most states lack a formal mechanism to ensure basic rights and


responsibilities to nonbiological,
nonadoptive coparents. Such laws
are important to children when
adult couple relationships are in
dissolution and appropriate custody is under consideration.

3. Entitlement for children to nancial support from and ongoing relationships with both
parents.

 The majority of states prohibit,


by statute or state constitutional
amendment, recognition of samegender marriage.12 A few states
extend other forms of relationship
recognition, such as civil union or
domestic partnership.

 Legal arrangements with a surrogate carrier are available in only


a few states to gay men who wish
to have a biologically related child.

 In the event of death of a spouse,


partner, or parent, state laws do
not provide for Social Security or
veterans survivor benets for the
surviving spouse/partner and children.

 A few states, either by statute, regulation, or legal interpretation, restrict or prohibit foster parenting
by same-gender couples and/or
lesbians and gay men.

 Laws regarding joint adoption by


same gender couples, wherein
both individuals become the legal
parents of a biologically unrelated
child, vary from state to state.13
Joint adoption by lesbian and gay
couples is expressly prohibited in
a few states, granted by law in
fewer than half, and not addressed
by statutes in most states.

 Only in states that recognize civil


marriage or other forms of domestic relationships can a lesbian or
gay spouse or partner be recognized
e1376

LEGAL DISPARITIES CREATED BY


FEDERAL LAWS AND REGULATIONS
Restrictions against civil marriage for
same-gender couples, such as the
federal Defense of Marriage Act (Pub L
No. 104-199 [1996]) and replications of
it in state statutes and constitutions,
deny these couples and their children
numerous other protections and benets deemed valuable by society and
government to which heterosexual
married couples and their children
have access. Under the Defense of
Marriage Act, these benets are not

Page 5 of 13

available to couples of the same gender even if they are legally married in
a state that recognizes same-gender
marriage. The US Government Accountability Ofce has identied a total
of 1138 federal statutory provisions in
which marital status was a factor in
determining or receiving rights, benets, and protections. These have been
outlined elsewhere in detail14; a few
examples are presented here:

 Legal recognition of a couples


commitment to and responsibility
for one another and legal recognition of a childs relationship to
both parents and joint parenting
rights;

 Tax-exempt employer-sponsored
health and other insurance benets for spouse/partner and
nonbiological/not jointly adopted
children;

 Ability to consent to medical care


or authorize emergency medical
treatment of nonbiological/not jointly
adopted children;

 The ability to travel with a child if it


will require proof of being a legal
parent;

 The ability to le joint income tax


returns and take advantage of
family-related deductions, including the ability to use the child tax
credit, child and dependent care
tax credit, dependency exemption,
earned income tax credit, and gift
and estate tax exemption; and

 A surviving parents right to the


custody of and care for, and childrens right to maintain a relationship with, a nonbiological or not
legally recognized parent in the
event of the death of the other parent.

HEALTH DISPARITIES

 Because children cannot legally


consent to medical treatment, the
lack of uniform legal recognition of

FROM THE AMERICAN ACADEMY OF PEDIATRICS

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 6 of 13

FROM THE AMERICAN ACADEMY OF PEDIATRICS

lesbian and gay parents results in


parents being prohibited from accompanying their child(ren) and
making medical decisions for them
in routine and even emergency
situations. Parents may even be
barred from visiting their child in
the hospital if their parental status
is ambiguous.

 Another challenge for same-gender


couples and their families is obtaining health insurance. As a result of the federal Defense of
Marriage Act, employers are not
required to, although some choose
to, offer health benets to samegender spouses or partners or
children of lesbian and gay
employees, even if those workers
are legally married in their state.
As a result, same-gender couples
are 2 to 3 times less likely to have
health insurance than are heterosexual couples.7,15 This disparity
affects children directly, because
the vast majority of children (more
than 84%) have the same health
insurance status as their parents
(public or private insurance or
uninsured16). Evidence that health
insurance coverage is directly associated with health status is undeniable.17

 Even when employers do make


health insurance benets available to same-gender spouses,
partners, and related children,
these families are faced with
an economic disadvantage compared with their heterosexual
counterparts. Such benets are
considered by the Internal Revenue Code to be taxable or imputed income to the employee
unless the spouse or partner or
child qualies as a legal dependent. In addition, employers must
also pay taxes on this imputed income for their share of the
employees payroll tax.

 Lesbian- and gay-headed families are


at greater peril than heterosexualheaded families when a parent
loses a job or takes a cut in pay.
The Consolidated Omnibus Budget
Reconciliation Act of 1995 (COBRA
[Pub L No. 99-272]) provides workers and their families who lose
their health benets the capacity
to continue group health benets
provided by their employer group
health plan for limited periods of
time. However, the COBRA, as federal legislation, does not require
employers, even those who provide
benets for same-gender spouses/
partners and their dependents, to
offer lesbian and gay employees the
opportunity to enroll their spouses,
partners, or children.

 Additional challenges exist in the


provision of health care. Physicians, hospitals, and other health
care professionals and environments may not offer a welcoming environment for same-gender
parents and their children. The
reaction a family may encounter ranges from acceptance to
disdain: sometimes pediatricians
and others encountered in health
care settings or institutions may
express stigmatizing attitudes or
refuse to recognize an unmarried
parent, especially when that parent is part of a gay or lesbian
couple. Among respondents in
a survey of gay and lesbian parents in New York, 42% reported
that dislike of lesbian and gay people was a barrier to accessing
health care and reported a lack
of appropriately trained, competent professionals to deliver health
care to lesbian and gay people.18
According to the October 2011 report, All Children Matter: How Legal and Social Inequalities Hurt
LGBT Children, a family may shy
away from scheduling a childs

doctors visit in an effort to shield


him or her from hostile questions
or misunderstandings. For parents
who must rely on medical professionals with unknown attitudes toward lesbian and gay patients,
concerns linger about treatment
of them and their children, which
can make care more difcult to
obtain.7 Some parents report worries about being blamed for their
childs physical or emotional disorders because of their sexual orientation or family constellation.19

CHILDRENS DEVELOPMENTAL
TRAJECTORY AND PSYCHOLOGICAL
OUTCOMES
Many factors confer risk to childrens
healthy development and adult outcomes, such as poverty, parental depression, parental substance abuse,
divorce, and domestic violence, but
the sexual orientation of their parents
is not among them. Many studies have
assessed the developmental and psychosocial outcomes of children whose
parents are gay or lesbian and note
that a familys social and economic
resources and the strength of the
relationships among members of the
family are far more important variables than parental gender or sexual
orientation in affecting childrens development and well-being.20 A large
body of scientic literature demonstrates that children and adolescents
who grow up with gay and/or lesbian
parents fare as well in emotional,
cognitive, social, and sexual functioning as do children whose parents are
heterosexual.2137 Although the methodologic challenges are daunting in
addressing phenomena as complex
and multifactorial as childrens longterm developmental and psychosocial
outcomes, the literature accumulated
over more than 30 years, taken together, provides robust, reliable, and
valid assurance about the well-being

PEDIATRICS Volume 131, Number 4, April 2013

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

e1377

3:13-cv-02351-JMC

of children raised by parents of the


same gender.28,29
The rst review of available data regarding the well-being of children living with lesbian or gay parents
concluded that While research on
these topics is relatively new.there
is no evidence that the development of
children with lesbian and gay parents
is compromised in any signicant respect relative to that among children
of heterosexual parents in otherwise
comparable circumstances.30
Another early review summarized 23
articles published before 2000 that,
together, described 615 offspring of
lesbian mothers and gay fathers and
387 controls by using a variety of
psychological tests and interviews. The
conclusion drawn from these studies
was that children raised by gay and
lesbian parents did not systematically
differ from other children in emotional/
behavioral functioning, sexual orientation, experiences of stigmatization,
gender role behavior, or cognitive
functioning.31
A more recent comprehensive review
of the experiences of gay and lesbian
parents and their children reafrmed
that most children raised by lesbian
and gay parents are developmentally
and socially well-adjusted and that the
societal presence of stigma, heterosexism, family circumstance, structure, and process are more important
inuences on childrens developmental
trajectory than is the gender or sexual
orientation of their parents.32
Much of this early research about
children with gay and lesbian parents
was, by necessity, based on relatively
small convenience samples. Nevertheless, more than 100 scientic
publications over 30 years, taken together, have demonstrated that childrens well-being is affected much
more by their relationships with
their parents, their parents sense of
competence and security, and the
e1378

Date Filed 11/05/14

Entry Number 86-2

presence of social and economic support for the family than by the gender
or the sexual orientation of their
parents.20,33,34
Increasing recognition and acceptance
of lesbian and gay parents has allowed
for larger, community-based and national studies in the United States and
Europe. Three studies are of particular
note. Using data obtained in a large
US population-based survey, the National Longitudinal Study of Adolescent
Health, the 44 adolescents who reported being raised by 2 women in
a marriage-like family arrangement
were compared with a random sample of 44 adolescents raised by heterosexual parents.35,36 There were no
differences noted in measures of selfesteem, depression, anxiety, school
connectedness, and school success.
The authors concluded that adolescents were functioning well and their
adjustment was not associated with
family type. In both groups of adolescents, those who described a closer
relationship with their parents reported less delinquent behavior and
substance abuse; that is, the quality of
parent-adolescent relationships better
predicted adolescent outcomes than
did family type.
Another community-wide study was
based on data from a cohort of 14 000
mothers of children born within
a particular county in England during
1 year.37 The study examined the
quality of parent-child relationships
and socioemotional and gender development in a community sample of
5- to 7-year-old children with lesbian
mothers. Thirty-nine lesbian mother
families were compared with 74 twoparent heterosexual families and 60
families headed by single heterosexual mothers. No differences were
found in maternal warmth, emotional
involvement, enjoyment of motherhood,
frequency of conicts, supervision
of the child, abnormal behaviors

Page 7 of 13

reported by parents or teachers in


the child, childrens self-esteem, or
psychiatric disorders. Both mothers
and teachers reported more behavioral problems among children in
single-parent families than among
children who had 2 parents in the
home, irrespective of their sexual
orientation.
A recent publication was based on
a large national sample of US adults
who were asked whether their parents
had ever had a relationship with
a person of the same gender while
they were growing up and whether
they had ever lived with that parent
while the parent was involved in such
a relationship.38 Parents who were
said to have had a same-gender relationship were categorized as lesbian
or gay parents, although their sexual
orientation was not directly determined. In comparison with those who
did not report that a parent had had
a same-gender relationship, a number
of adverse outcomes were identied,
including being on public assistance,
being unemployed, and having poorer
educational attainment. Extensive critique of this study3944 has pointed out
that:

 It is well known that family instability, and in particular divorce, is


a risk factor for children,45,46 and
almost all of the respondents
whose parent had had a samegender relationship had also experienced the divorce of their
parents.

 These data reect an era when


stigmatization and discrimination
toward same-gender couples and
their children were strong and
were likely to have contributed
to less-than-optimal child-rearing
environments.40

 Respondents were certainly not


children raised by lesbian or
gay parents, because only half
were living with these parents,

FROM THE AMERICAN ACADEMY OF PEDIATRICS

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 8 of 13

FROM THE AMERICAN ACADEMY OF PEDIATRICS

and the sexual orientation of the


parents was not determined.41,42

 The great variability in the form


and characteristics of both samegender and heterosexual relationships, combined with the small
number of those relationships,
even in a large data set like this
one, makes it impossible to sort
out true evidence of causality.43
A longstanding longitudinal study of
children born to lesbian parents in the
United States provides further insight
into the well-being of children raised
from birth by lesbian parents. The
National Longitudinal Lesbian Family
Study began in 1986, enrolling 154
lesbian mothers who became pregnant through donor insemination (70
birth mothers, 70 comothers, and 14
single mothers). These mothers have
been enrolled in the study for more
than 17 years, maintaining a retention
rate of 92%. Recent publications describe the outcome of 78 adolescent
offspring at age 17 (39 girls and 39
boys) on the basis of mothers and
adolescents reports and comparing
them with national standardization
samples. The mothers reports about
their 17-year-old sons and daughters
indicated that they had high levels of
social, school/academic, and total
competence and fewer social problems, rule breaking, and aggressive
and externalizing behavior compared
with their age-matched counterparts
in the Achenbach Child Behavior
Checklists standardization sample.
There were no differences between
offspring who were conceived by
known or anonymous donors or between offspring whose parents were
still together and those whose mothers had separated.47 An accompanying editorial noted, Can these data
reassure those who fear that homosexual relationships with or without
children will herald the end of the
family as we know it? Our experience

tells us of the resilience of children


who are loved and know that love.
And when we see these moms or dads
with their kids in our practice, we call
them families.48
The self-reported quality of life of the
adolescents in this sample was similar
to that reported by a comparable
sample of adolescents with heterosexual parents.49 Lesbian parents
reported that they planned to expose
their children to male role models as
an important child-rearing strategy.
Half of both the girls and the boys had
identied a male role model in their
lives. There were no signicant associations between gender role traits,
adolescent psychological adjustment,
gender of the adolescent, and the
presence or absence of male role
models.50
More data are available to document
the well-being of children whose
parents are lesbian than of those
whose parents are gay men, because
the numbers of gay men parenting
have, until recently, been small. Recent
studies afrm that families created
by gay men resemble closely those
created by lesbians.51 For example,
a recent study assessed child development and parenting among 27
lesbian, 29 gay, and 50 heterosexual
couples who had adopted a child.52
Lesbian and gay parents were similar
in a variety of parenting characteristics to their heterosexual counterparts. Children in all family types
were functioning similarly and had few
behavior problems. Average scores
for internalizing, externalizing, and
total behavior problems reported by
parents and teachers were similar to
population averages for the child development instruments. In particular,
there were no differences among the
family types in childrens adjustment,
parenting stress, parent discipline
techniques, and couple adjustment. As
in previous studies, teachers ratings

of behavior noted that behavior problems were more likely in children with
single parents than with 2 parents,
irrespective of their sexual orientation.
Instead, parents who reported less
parenting stress, use of more effective
disciplinary techniques and who had
greater happiness in their couple
relationships had children who were
described as well off.51
Some authors have investigated childrens academic performance as an
indicator of their well-being. Two articles compared the academic achievement of children whose parents
were gay or lesbian with children
whose parents were heterosexual. Although the studies were performed
with different methodologies and in
different population groups, both
revealed similar academic achievement in the 2 groups. Using an analysis of US Census data to perform the
rst large-sample, nationally representative analysis of educational outcomes, the author concluded that
children of same-sex couples are
as likely to make normal progress
through school as the children of
most other family structures.53 Another study demonstrated that lower
academic achievement was related
more to the number of family transitions experienced by children than
to the sexual orientation of their
parents.54
A few publications have suggested less
positive outcomes for children raised
by same-gender parents. For example,
a small study from Australia55 has
sometimes been cited in support of
the proposition that children raised by
lesbians and gay men are less welladjusted than those raised by heterosexual couples. The study was
based on a comparison of teachers
reports about 58 children in each of 3
groups of parents: married, heterosexual cohabiting, and gay or lesbian
cohabiting. A primary goal of the

PEDIATRICS Volume 131, Number 4, April 2013

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

e1379

3:13-cv-02351-JMC

study was to understand possible


disadvantages to childrens school
and social performance on the basis
of the marriage versus cohabitation
of their parents. It is critical to note
that:

 At the time of the research, marriage was available only to heterosexual parents, and therefore, all
gay or lesbian couples were, by
denition, cohabiting.

 There is strong evidence provided


in the article that the children with
gay or lesbian parents were severely stigmatized in their schools
and communities.

 Most of the children with gay or


lesbian parents had experienced
the divorce of their heterosexual
birth parents, in many cases
shortly before the time of study,
thus potentially adding to the
childrens stress.45,46
The studys ndings included considerable variation in the ratings given
by teachers with regard to the childrens school behavior and performance. For example, children with gay
or lesbian parents were rated as
performing less well in language and
math but better in social studies and
as having a better attitude toward
learning, compared with the children
being raised by cohabiting or married
heterosexual parents. The deleterious
effects of divorce and of stigmatization on childrens development are
described by the author as likely
contributors to the areas of poorer
performance of the children with gay
or lesbian parents. Overall, the
authors conclusions emphasized the
benets of marriage: married couples seem to offer the best environment for a childs social and
educational development.55 In another article, the same author reported
a comparison of cohabiting adults
of the same and of different genders
and concluded that, in substantial
e1380

Date Filed 11/05/14

Entry Number 86-2

ways, the relationships of cohabiting


adults are similar, whether the partners are of the same or different
genders.56
A 2012 commentary has described
various shortcomings of the aforementioned research in support of adoption rights and marriage equality for
same-gender couples.57 In general,
this critique pointed out that most
studies have included small and selective samples; have rarely reported
longitudinal data and, therefore, have
reported only short-term outcomes;
and often have not included a comparison group. While agreeing with
the imperfections of past research in
this area, others have pointed out the
intrinsic complexities of this research
agenda40 and commented that, despite these imperfections, it is likely
that the extensive research efforts
that have been carried out would have
documented serious and signicant
damages if they existed. In addition, it
is important to note that all past research about children growing up
with gay or lesbian parents has taken
place in the context of pervasive social stigma and includes a majority of
children whose parents were either
single or divorced, each of which can
be expected to contribute to poor
outcomes for children.39
Although studies of uncommon and
varied phenomena are difcult to
perform and yield incomplete and
imperfect results, there is an emerging consensus, based on an extensive
review of the scientic literature, that
children growing up in households
headed by gay men or lesbians are not
disadvantaged in any signicant respect relative to children of heterosexual parents. Indeed, the fact that
most data suggest that children grow
up successfully in families created by
gay and lesbian parents despite the
almost-universal family disruption and
social stigma they have experienced

Page 9 of 13

attests to the resilience of these


families. Greater acceptance and support of these families will provide an
environment even more conducive to
successful social and emotional development.
Over the past decade, 11 countries
have recognized marriage equality
and, thus, allow marriage between 2
partners of the same gender: Argentina, Belgium, Canada, Denmark, Iceland, Netherlands, Norway, Portugal,
Spain, South Africa, and Sweden. There
has been no evidence that children in
these countries have experienced difculties as a result of these social
changes.

WHEN MARRIAGE IS NOT AN


OPTION
The AAP recognizes that some children
are members of families headed by
a single parent or by 2 parents who do
not choose to be legally married and
that it is possible for these parents
to overcome the challenges involved
in raising children in these circumstances. The AAP also acknowledges
that some children have been removed
from severely challenged families and
are in temporary custody of a state
agency or a related adult. There is no
evidence that restricting these childrens
access to loving and nurturing adoptive
or foster care homes on the basis of
gender or sexual orientation of the
parents is in their best interests.52,58

MARRIAGE MATTERS
The AAP Task Force on the Family
reported that married men and
women are physically and emotionally
healthier and are less likely to engage
in health risk behaviors, such as alcohol or drug abuse, than are unmarried adults.2 Both men and
women live longer when married,
presumably in part because they have
healthier lifestyles, eat better, and

FROM THE AMERICAN ACADEMY OF PEDIATRICS

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 10 of 13

FROM THE AMERICAN ACADEMY OF PEDIATRICS

monitor each others health.2 They


tend to have relationships with more
people and social institutions, which
increases their level of social support.
It has been well established that permanently married parents can create
the best environment for childrens
development.2,59
Marriage supports permanence and
security (the basic ingredients for the
healthy development of children).
Marriage is also the ofcial societal
mechanism for conferring rights,
benets, and protections that support
couples as spouses and parents and
their children nancially and legally.
In a survey of married same-gender
couples in Massachusetts, the rst
state to allow civil marriage for samegender couples, 24% of the respondents noted that their children had
previously been explicitly teased or
taunted about having a gay or lesbian
parent, but 93% of respondents stated
that marriage has made their children
happier and better off.60 Eighty-four
percent of parents stated that their
being married made them feel more
comfortable working with their child
(ren)s teachers at school.

CONCLUSIONS
On the basis of this comprehensive
review of the literature regarding
the development and adjustment of

children whose parents are the same


gender, as well as the existing evidence
for the legal, social, and health benets of marriage to children, the AAP
concludes that it is in the best interests of children that they be able to
partake in the security of permanent
nurturing and care that comes with
the civil marriage of their parents,
without regard to their parents gender or sexual orientation.
Marriage equality can help reduce
social stigma faced by lesbian and gay
parents and their children, thereby
enhancing social stability, acceptance,
and support. Children who are raised
by married parents benet from the
social and legal status that civil marriage conveys to their parents.
When marriage of their parents is not
a viable option, children should not
be deprived of the opportunity for
temporary foster care or adoption by
single parents or couples, irrespective
of their sexual orientation. Public
policy and community support are vital
to the success of children in these
circumstances.
Pediatricians working to eliminate
disparities and establish support,
stability, and security of all families
through marriage equality and legal
parental recognition honor the AAP
mission to promote the optimal physical, mental, and social health and

well-being of all infants, children,


adolescents, and young adults.

ACKNOWLEDGMENT
The authors and the committee thank
James G. Pawelski, MS, for his valuable
contributions to the development of this
technical report.
LEAD AUTHORS
Ellen C. Perrin, MD, MA
Benjamin S. Siegel, MD

COMMITTEE ON PSYCHOSOCIAL
ASPECTS OF CHILD AND FAMILY
HEALTH, 20122013
Benjamin S. Siegel, MD, Chairperson
Mary I. Dobbins, MD
Arthur Lavin, MD
Gerri Mattson, MD
John Pascoe, MD, MPH
Michael Yogman, MD

LIAISONS

Ronald T. Brown, PhD Society of Pediatric


Psychology
Mary Jo Kupst, PhD Society of Pediatric
Psychology
D. Richard Martini, MD American Academy of
Child and Adolescent Psychiatry
Barbara Blue, MSN, RN, CPNP, PMHNP-BC
National Association of Pediatric Nurse
Practitioners
Terry Carmichael, MSW National Association
of Social Workers

CONSULTANT
George J. Cohen, MD

STAFF
Stephanie Domain, MS, CHES

REFERENCES
1. American Academy of Pediatrics, Committee on the Psychosocial Aspects of Child
and Family Health. Promoting the wellbeing of children whose parents are gay
or lesbian. Pediatrics. 2013; in press
2. American Academy of Pediatrics, Task
Force on the Family. Family pediatrics. Pediatrics. 2003;111(6 suppl 2):15411571
3. United States Census Bureau. Americas
families and living arrangements: 2011.
Table C3. Living arrangements of children
under 18 years/1 and marital status of

parents, by age, sex, race, and Hispanic


origin/2 and selected characteristics of the
child for all children. Available at: www.
census.gov/population/www/socdemo/hhfam/cps2011.html. Accessed November 28,
2012
4. US Census Bureau. Same-sex couple
household statistics from the 2010 census.
September 27, 2011. Washington, DC: US
Census Bureau, Social, Economic and
Housing Statistics Division; 2011. Working
paper 2011-26. Available at: www.census.

gov/hhes/samesex/les/ss-report.doc. Accessed
November 28, 2012
5. US Census Bureau and American Community Survey. Same-sex unmarried partner
or spouse households by sex of householder by presence of own children.
Washington, DC: US Census Bureau; 2010.
Available at: www.census.gov/hhes/samesex/les/supp-table-AFF.xls. Accessed November 28, 2012
6. The Williams Institute. Census snapshot
2010. Available at: http://williamsinstitute.

PEDIATRICS Volume 131, Number 4, April 2013

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

e1381

3:13-cv-02351-JMC

7.

8.

9.

10.

11.

12.

13.

14.

15.

law.ucla.edu/wp-content/uploads/Census2010
Snapshot-US-v2.pdf. Accessed November 28,
2012
Movement Advancement Project, Family
Equality Council, and Center for American
Progress. All Children Matter. How Legal and Social Inequalities Hurt LGBT
Families. Boston, MA: Family Equality
Council; October 2011. Available at: http://
www.lgbtmap.org/le/all-children-matterfull-report.pdf. Accessed February 22,
2013
Cianciotto J. Hispanic and Latino same-sex
couple households in the United States:
a report from the 2000 census. Washington, DC: National Gay and Lesbian Task
Force Policy Institute and National Latino/
a Coalition for Justice; 2005. Available at:
www.thetaskforce.org/downloads/reports/
reports/HispanicLatinoHouseholdsUS.pdf.
Accessed November 28, 2012
Dang A, Frazer S. Black same-sex households in the United States: a report from
the 2000 census. 2nd ed. Washington, DC:
National Gay and Lesbian Task Force Policy
Institute; 2005. Available at: www.thetaskforce.
org/reports_and_research/blackcouples_
census. Accessed November 28, 2012
Sears RB, Gates GJ, Rubenstein WB. SameSex Couples and Same-Sex Couples Raising
Children in the United States: Data From
Census 2000. Los Angeles, CA: The Williams
Institute; 2005
American Academy of Pediatrics, Division
of State Government Affairs. Available at:
www.aap.org/en-us/advocacy-and-policy/stateadvocacy/Pages/Division-of-State-GovernmentAffair.aspx. Accessed November 28, 2012
National Conference of State Legislatures.
Dening marriage: defense of marriage
acts and same-sex marriage laws. Available
at: www.ncsl.org/issues-research/humanservices/same-sex-marriage-overview.aspx.
Accessed November 28, 2012
Adoption and Foster Care Analysis and
Reporting System. Preliminary FY 2010 estimates. Available at: www.acf.hhs.gov/programs/cb/resource/afcars-report-18. Accessed
November 28, 2012
Shah DK, Associate General Counsel. Letter
to Honorable Bill Frist, Majority Leader,
United State Senate, January 23, 2004. Defense of Marriage Act: update to prior report. Available at: www.gao.gov/new.items/
d04353r.pdf. Accessed November 28, 2012
Kaiser Family Foundation. Health coverage
of children: the role of Medicaid and CHIP.
Washington, DC: Kaiser Family Foundation;
2010. Available at: www.kff.org/uninsured/
upload/7698-04.pdf. Accessed November 28,
2012

e1382

Date Filed 11/05/14

Entry Number 86-2

16. Ash MA, Badgett MV. Separate and unequal: the effect of unequal access to
employment-based health insurance on
same-sex and unmarried different-sex
couples. Contemp Econ Policy. 2006:24(4):
582599
17. US Government Accountability Ofce. Report
to Congressional Committees. Medicaid and
CHIP: given the association between parent
and child insurance status, new expansions
may benet families. February 2011. Available at: www.gao.gov/new.items/d11264.pdf.
Accessed November 28, 2012
18. Frazer MS. LGBT health and human services
needs in New York State. Albany, NY: Empire
State Pride Agenda Foundation; 2009.
Available at: www.prideagenda.org/Portals/
0/pdfs/LGBT%20Health%20and%20Human%
20Services%20Needs%20in%20New%20York
%20State.pdf. Accessed November 28, 2012
19. Perrin EC, Kulkin H. Pediatric care for
children whose parents are gay or lesbian.
Pediatrics. 1996;97(5):629635
20. Lamb ME. Mothers, fathers, families, and
circumstances: factors affecting childrens
adjustment. Appl Dev Sci. 2012;16(2):98111
21. Stacey J, Biblarz TJ. How does the sexual
orientation of parents matter? Am Sociol
Rev. 2001;66(2):159183
22. Golombok S, Badger S. Children raised in
mother-headed families from infancy: a follow-up of children of lesbian and single
heterosexual mothers in early adulthood.
Hum Reprod. 2010;25(1):150157
23. Bos HM, Sandfort TG, de Bruyn EH, et al
Same-sex attraction, social relationships,
psychosocial functioning, and school performance in early adolescence. Dev Psychol. 2008;44(1):5968
24. MacCallum F, Golombok S. Children raised
in fatherless families from infancy: a follow-up of children of lesbian and single
heterosexual mothers at early adolescence. J Child Psychol Psychiatry. 2004;45
(8):14071419
25. Vanfraussen K, Ponjaert-Kristofferson I,
Brewaeys A. What does it mean for
youngsters to grow up in a lesbian family
created by means of donor insemination? J
Reprod Infant Psychol. 2002;20(4):237252
26. Patterson CJ. Children of lesbian and gay
parents. Curr Dir Psychol Sci. 2006;15(5):
241244
27. Wainright L, Russell ST, Patterson CJ. Psychosocial adjustment, school outcomes,
and romantic relationships of adolescents
with same sex parents. Child Dev. 2004;75
(6):18861898
28. Tasker F. Lesbian mothers, gay fathers, and
their children: a review. J Dev Behav
Pediatr. 2005; 26(3):224240

Page 11 of 13

29. Perrin EC. Sexual Orientation in Child and


Adolescent Health Care. New York, NY:
Wolters Kluwer; 2002
30. Patterson CJ. Children of lesbian and gay
parents. Child Dev. 1992;63(5):10251042
31. Anderssen N, Amlie C, Yttery EA. Outcomes
for children with lesbian and gay parents. A
review of the studies from 1978 to 2000.
Scand J Psychol. 2002;43(4):335351
32. Goldberg AE. Lesbian and Gay Parents and
Their Children: Research on the Family Life
Cycle. Washington, DC: American Psychological Association; 2010
33. Perrin EC; American Academy of Pediatrics,
Committee on Psychosocial Aspects of
Child and Family Health. Technical report:
coparent or second-parent adoption by
same-sex parents. Pediatrics. 2002;109(2):
341344
34. Pawelski JG, Perrin EC, Foy JM, et al The
effects of marriage, civil union, and domestic partnership laws on the health and
well-being of children. Pediatrics. 2006;118
(1):349364
35. Wainwright JL, Patterson CJ. Delinquency,
victimization, and substance abuse among
adolescents with female same-sex parents.
J Family Psychol. 2006;20(3):526530
36. Wainwright JL, Patterson CJ. Peer relations
among adolescents with female same-sex
parents. Dev Psychol. 2008;44(1):117126
37. Golombok S, Perry B, Burston A, et al
Children with lesbian parents: a community
study. Dev Psychol. 2003;39(1):2033
38. Regnerus M. How different are the adult
children of parents who have same-sex
relationships? Findings from the New
Family Structures Study. Soc Sci Res. 2012;
41(4):752770
39. Eggebeen DJ. What can we learn from
studies of children raised by gay or lesbian
parents? Soc Sci Res. 2012;41(4):775778
40. Amato PR. The well-being of children with
gay and lesbian parents. Soc Sci Res. 2012;
41(4):771774
41. Gates G. Letter to the editors. Soc Sci Res.
2012:41(6):13501351
42. Barrett D. Presentation, politics, and editing: the Marks/Regnerus articles. Soc Sci
Res. 2012:41(6):13541356
43. Osborne C. Further comments on the
papers by Marks and Regnerus. Soc Sci
Res. 2012;41(4):779783
44. Perrin AJ, Cohen P, Caren N. Are children of
parents who had same-sex relationships
disadvantaged? A scientic evaluation of
the no-difference hypothesis. J Gay Lesbian
Mental Health. 2013;17(3). In press
45. Cherlin AJ, Chase-Lansdale PL, McRae C.
Effects of parental divorce on mental

FROM THE AMERICAN ACADEMY OF PEDIATRICS

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 12 of 13

FROM THE AMERICAN ACADEMY OF PEDIATRICS

46.

47.

48.
49.

50.

health throughout the life course. Am


Sociol Rev. 1998;63(2):239249
Cherlin AJ, Kiernan KE, Chase-Lansdale PL.
Parental divorce in childhood and demographic outcomes in young adulthood.
Demography. 1995;32(3):299318
Gartrell N, Bos HN. US national longitudinal
lesbian family study: psychological adjustment of 17-year-old adolescents. Pediatrics.
2010;126(1):2836
Hagan J. What shall we call them? Pediatrics. 2010;126(1):175176
Van Gelderen L, Bos HN, Gartrell N, et al
Quality of life of adolescents raised from
birth by lesbian mothers: the national
longitudinal study. J Dev Behav Pediatr.
2012;33(1):1723
Bos H, Goldberg N, Van Gelderen L, Gartrell
N. Adolescents of the U.S. national longitudinal lesbian family study: male role models, gender role traits, and psychological

51.

52.

53.

54.

55.

56.

adjustment. Gender Soc. 2012;26(4):603


638
Goldberg A. Gay Dads: Transitions to
Adoptive Fatherhood. New York, NY: New
York University Press; 2012
Farr RH, Forssell SL, Patterson CJ. Parenting and child development in adoptive
families: does sexual orientation matter?
Appl Dev Sci. 2010;14(3):164178
Rosenfeld MJ. Nontraditional families and
childhood progress through school. Demography. 2010;47(3):755775
Potter D. Same-sex parent families and
childrens academic achievement. J Marriage Fam. 2012;74(3):556571
Sarantakos S. Children in three contexts:
family, education and social development.
Children Austr. 1996;21(3):2330
Sarantakos S. Same-sex couples: problems
and prospects. J Fam Studies. 1996;2(2):
147163

57. Marks L. Same-sex parenting and childrens


outcomes: a closer examination of the
American psychological associations brief
on lesbian and gay parenting. Soc Sci Res.
2012;41(4):735751
58. Lavner JA, Waterman J, Peplau LA. Can gay
and lesbian parents promote healthy development in high risk children adopted
from foster care? Am J Orthopsychiatry.
2012;82(4):465472
59. Brown S. Marriage and child well-being:
research and policy perspectives. J Marriage Fam. 2010;72(5):10591077
60. Ramos C, Goldberg NG, Lee Badgett MV. The
effects of marriage equality in Massachusetts: a survey of the experiences and impact of marriage on same sex couples. Los
Angeles, CA: The Williams Institute; May 2009.
Available at: www.policyarchive.org/handle/
10207/bitstreams/18503.pdf. Accessed November 28, 2012

PEDIATRICS Volume 131, Number 4, April 2013

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

e1383

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-2

Page 13 of 13

Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian


Ellen C. Perrin, Benjamin S. Siegel and the COMMITTEE ON PSYCHOSOCIAL
ASPECTS OF CHILD AND FAMILY HEALTH
Pediatrics; originally published online March 20, 2013;
DOI: 10.1542/peds.2013-0377
Updated Information &
Services

including high resolution figures, can be found at:


http://pediatrics.aappublications.org/content/early/2013/03/18
/peds.2013-0377

Citations

This article has been cited by 3 HighWire-hosted articles:


http://pediatrics.aappublications.org/content/early/2013/03/18
/peds.2013-0377#related-urls

Permissions & Licensing

Information about reproducing this article in parts (figures,


tables) or in its entirety can be found online at:
http://pediatrics.aappublications.org/site/misc/Permissions.xh
tml

Reprints

Information about ordering reprints can be found online:


http://pediatrics.aappublications.org/site/misc/reprints.xhtml

PEDIATRICS is the official journal of the American Academy of Pediatrics. A monthly


publication, it has been published continuously since 1948. PEDIATRICS is owned, published,
and trademarked by the American Academy of Pediatrics, 141 Northwest Point Boulevard, Elk
Grove Village, Illinois, 60007. Copyright 2013 by the American Academy of Pediatrics. All
rights reserved. Print ISSN: 0031-4005. Online ISSN: 1098-4275.

Downloaded from pediatrics.aappublications.org by guest on November 5, 2014

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 1 of 12

Shapiro and Schultz


The Impact of Birth Innovations Upon Traditional Family Notions
24 J.Fam.L. 271 (1985)

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 2 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 3 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 4 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 5 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 6 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 7 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 8 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 9 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 10 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 11 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-3

Page 12 of 12

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

Page 1 of 55

Catherine Smith
Equal Protection for Children of Same-Sex Parents
90 Wash. U. L. Rev. 1589 (2013)

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

Page 2 of 55

University of Denver Sturm College of Law


Legal Research Paper Series
Working Paper No. 12-06

EQUAL PROTECTION FOR CHILDREN OF SAME-SEX PARENTS

Catherine Smith
University of Denver Sturm College of Law

This paper can be downloaded without charge from the Social Science Research Network
Electronic Paper Collection

Electronic copy available at: http://ssrn.com/abstract=2037519

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

Page 3 of 55

Washington University
Law Review
VOLUME 90

NUMBER 6

2013

EQUAL PROTECTION FOR CHILDREN OF


SAME-SEX PARENTS
CATHERINE E. SMITH
ABSTRACT
Gay rights litigation and advocacy traditionally have focused on the
unequal treatment of gay and lesbian individuals and couples; less
attention has been dedicated explicitly to the legal rights of the children of
gay and lesbian parents. This Article asserts that a child of same-sex
parents denied a government benefit has a cognizable equal protection
challengea legal claim that is separate and distinct from that of the
childs gay or lesbian parents. It is well-settled equal protection law that
the government may not treat nonmarital children differently than marital
children because of moral disdain for their parents relationship, and laws
classifying children based on their parents marital status are subject to
intermediate scrutiny. Today, a majority of states exclude children of
same-sex parents from the economic benefits that could be derived from
their non-biological same-sex parent, including health insurance,
workers compensation benefits, child support, and social security
benefits. When medical events, divorces, lay-offs or death occur in the
Associate Professor of Law, University of Denver Sturm College of Law. J.D. and M.P.A.,
University of South Carolina. This Article is dedicated to Zoe Jane Smith-Holladay and her peers with
LGBT parents. The author is indebted to Sara Hildebrand, Carl Charles, Robert Geesey, and Amalia
Sax-Bolder for their excellent research assistance. Thanks to Rachel Arnow-Richman, Diane
Burkhardt, Violeta Chapin, Roberto Corrada, Patience Crowder, Nancy Ehrenreich, Rashmi Goel,
Melissa Hart, Jennifer Holladay, Courtney Joslin, Beto Juarez, Martin Katz, Nancy Leong, Kevin
Lynch, Adele Morrison, Melissa Murray, Helen Norton, Angela Onwuachi-Willig, Nancy Polikoff,
Susannah Pollvogt, Raja Raghanuth, Tom Romero, Robin Walker Sterling, and Tanya Washington, for
their support and comments. I also thank the Colorado Employment Law Faculty (CELF), and
participants at the 2011 Lutie Lytle Black Women Law Professors Writing Workshop and the Sturm
College of Law work-in-progress participants for excellent feedback on this Article.

1589

Electronic copy available at: http://ssrn.com/abstract=2037519

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

Page 4 of 55

p 1589 Smith book pages.docx9/23/2013

1590

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

lives of children of same-sex parents in these no-protection states, they


are denied important economic safety netssafety nets that children of
married and unmarried opposite-sex parents enjoy. As a subset of
nonmarital children, children of same-sex parents exercise no control over
their parents conduct, but suffer concrete economic injuries because of
the states imputation of immorality to them. This government-sponsored
discrimination cannot be fairly justified on the basis of preserving
traditional family values or on the basis of ensuring administrative
efficiency. No-protection states must dismantle the insurmountable
barrier that blocks children of same-sex parents from establishing a legal
relationship with their non-biological same-sex parent, and place them on
equal footing with their opposite-sex parented peers.
TABLE OF CONTENTS
I. INTRODUCTION .................................................................................. 1591
II. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS ...... 1595
A. The Legal Construction of Parenthood ................................. 1598
B. The State Benefits Denied Children of Same-Sex Parents .... 1603
1. State Benefits ................................................................. 1603
2. Social Security and Federal Benefits Dependent on
State Definitions of Legal Parentage ............................ 1606
III. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS
WARRANTS INTERMEDIATE SCRUTINY ......................................... 1608
A. The Equal Protection Law of Nonmarital Children .............. 1608
B. Children of Same-Sex Parents As a Subset of Nonmarital
Children................................................................................. 1615
1. Children of Same-Sex Parents Have No Control Over
Their Parents Conduct or Their Status of Birth ........... 1616
2. Imputing Immorality to the Child to Deny Basic Safety
Nets Is Impermissible .................................................... 1617
3. Children of Same-Sex Parents Suffer Concrete
Economic Injuries.......................................................... 1620
IV. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS TO
P
RESERVE MORAL VALUES ....................................................... 1621
A. Preserving Family Values Arguments .............................. 1622
1. The Lack of a Nexus to Financial Stability.................... 1624
V. ADMINISTRATIVE EFFICIENCY AND THE INSURMOUNTABLE
BARRIER DOCTRINE ...................................................................... 1628
A. The Insurmountable Barrier Doctrine .................................. 1629
B. The State Options to Remove the Insurmountable Barrier ... 1633

Electronic copy available at: http://ssrn.com/abstract=2037519

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1591

1.
2.

Voluntary Acknowledgment of Paternity/Parentage ..... 1633


Other Forms of Parental Acknowledgment ................... 1634
a. Intent to Parent Statutes ........................................ 1634
b. De facto Parental Status ................................... 1635
3. Second-Parent Adoption................................................ 1636
4. Domestic Partnerships, Civil Unions and Marriage ..... 1637
5. Legal Channels for Children ......................................... 1638
6. Preventing Spurious Claims .......................................... 1638
VI. CONCLUSION ................................................................................... 1640
I. INTRODUCTION
What about the children?1
Gay-rights litigation and advocacy have traditionally focused on the
unequal treatment of gay and lesbian individuals and couples; less has
been dedicated explicitly to the legal rights of the children of gay and
lesbian parents.2 To date, no state or federal court has directly addressed
what level of scrutiny applies to children who face discrimination because
of their same-sex parents relationships.3 In one of the few cases brought
directly on behalf of children of same-sex parents, a trial judge dismissed
the childrens equal protection claim against a same-sex marriage ban as
lacking a
ny precedent directly on point . . . that the minor [p]laintiffs may
assert such derivative claims.4 Surprisingly, the courts conclusion does
not comport with the history of successful equal protection challenges by
children who are discriminated against because of the moral disdain of
1. Many scholars have laid the foundation for the approach taken in this Article. See, e.g., Harry
D. Krause, Equal Protection for the Illegitimate, 65 MICH. L. REV. 477 (1967); HARRY D. KRAUSE,
ILLEGITIMACY: LAW AND SOCIAL POLICY (1971); Barbara Bennett Woodhouse, Hatching the Egg: A
Child-Centered Perspective on Parents Rights, 14 CARDOZO L. REV. 1747 (1993); Gilbert A. Holmes,
The Tie that Binds: The Constitutional Right of Children to Maintain Relationships With Parent-Like
Individuals, 53 MD. L. REV. 358 (1994).
2. See Lewis A. Silverman, Suffer the Little Children: Justifying Same-Sex Marriage from the
Perspective of a Child of the Union, 102 W. VA. L. REV. 411, 412 (1999) (
The preponderance of the
dialogue about same-sex marriage concentrates on the adult partners and their derivative benefits from
the relationship; precious little focus is given to the rights of a child who may be a product of a samesex relationship.).
3. In light of the Supreme Courts ruling in United States v. Windsor, 133 S. Ct. 786 (2012),
children in marriage equality states are now eligible for both state and federal benefits. This does not
significantly change the plight of children in
no-protection states as discussed in this Article.
Windsor was decided as this Article moved to publication. For a more complete discussion of Windsor
and its effects, see Catherine E. Smith, Windsors Progeny (forthcoming) (on file with author).
4. See Varnum v. Brien, No. CV5965, 2007 WL 2468667, at *46 (Iowa Dist. Aug. 30, 2007),
affd, 763 N.W.2d 862, 872 (Iowa 2009). See also In re Doe, 2008 WL 5006172 (Fla. Cir. Ct. 2008).

Page 5 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1592

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

their parents relationships.5 It is well-settled equal protection law that the


government may not treat nonmarital children (once called illegitimate
children)6 differently than marital children, and such distinctions are
subject to intermediate scrutiny. A child of same-sex parents denied a
government benefit has a cognizable equal protection challengea legal
claim that is separate and distinct from that of the childs gay and lesbian
parents.7
In a significant number of states, in what this Article will refer to as

no-protection states, children of same-sex parents are excluded from


countless rights and benefits in relation to their non-biological same-sex
parent, including health insurance coverage, workers compensation
benefits, child support, social security benefits, inheritance, and wrongful
death recovery.8 Shockingly, even when courts acknowledge these
injuries, they simply treat the economic harms to the child as abstract
collateral damage in the legal wrangling over same-sex marriage.9 While
supporters and opponents of gay rights invest millions of dollars into the
battle over same-sex marriage in states like California that extend
significant legal protections to same-sex couples and their children,
noprotection states operate a complete caste system.
5. See Levy v. Louisiana, 391 U.S. 68, 72 (1968) (holding, in an action brought on behalf of
nonmarital children for the wrongful death of their mother, that it was
invidious to discriminate
against [the children] when no action, conduct, or demeanor of theirs is possibly relevant to the harm
that was done the mother).
6. Throughout this Article, the author uses the term
nonmarital children, and will only use the
term
illegitimate when quoting cases or using the term in a historical sense.
7. A party has a direct
cause of action where the factual situation underlying the action
entitles the party to maintain an action in a judicial tribunal. BLACKS LAW DICTIONARY 251 (9th ed.
2009). A derivative action is
[a] lawsuit arising from an injury to another person, such as a husbands
action for loss of consortium arising from an injury to his wife caused by a third person. Id. at 509.
This Article argues that the children of same-sex couples have a direct cause of action for economic
injuries suffered by them, as opposed to a claim derived from an injury to their parent(s). Issues of
standing are beyond the scope of this Article.
8. See Linda L. Elrod, A Childs Perspective of Defining a Parent: The Case for Intended
Parenthood, 25 BYU J. PUB. L. 245, 248 (2011); Kathy T. Graham, Same-Sex Couples: Their Rights
as Parents, and Their Childrens Rights as Children, 48 SANTA CLARA L. REV. 999, 1002, 1119
(2008); William Mason Emnett, Queer Conflicts: Mediating Parenting Disputes Within the Gay
Community, 86 GEO. L.J. 433, 437 (1997) (
By and large, courts . . . have refused to extend custody or
visitation rights to gay co-parents.).
9. For example, in an unsuccessful constitutional challenge to Arizonas same-sex marriage
ban, the Arizona Court of Appeals explained that
although the line drawn between couples who may
marry (opposite-sex) and those who may not (same-sex) may result in some inequity for children
raised by same-sex couples, such inequity was insufficient to negate [Arizonas] link between
opposite-sex marriage, procreation, and child-rearing. Standhardt v. Superior Court, 77 P.3d 451, 463
(Ariz. Ct. App. 2003).

Page 6 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1593

Children of same-sex parents are certainly relevant to the gay rights


debate,10 and they are a growing population in number and visibility.
According to the United States Census, twenty-eight percent of
cohabitating same-sex couples are raising at least one child under the age
of eighteen.11 The exact number is unknown; however, social scientists
estimate that our nation is home to somewhere between 300,000 and
1 million children being raised by same-sex couples, and the number of
single gays and lesbians raising children increases this estimate to at least
two million children.12 Like children of opposite-sex parents, children of
gay and lesbian parents live through the entire range of experiences that
define family life, including crises in their households such as medical
events, divorces, lay-offs, and deaths.13 Further, contrary to the popular
a
ffluent gay stereotype, children of same-sex couples are in need of the
benefits that they are denied. These children are twice as likely to live in
poverty in comparison to marital children,14 and their parents have lower
median and average incomes than married opposite-sex couples raising
children.15 Yet, when crises occur in the lives of children of same-sex
couples,
no-protection states may deny these children benefits
10. For a discussion about childrens interests, see Nancy D. Polikoff, For the Sake of All
Children: Opponents and Supporters of Same-Sex Marriage Both Miss the Mark, 8 N.Y. CITY L. REV.
573, 586 (2005); Benjamin G. Ledsham, Means to Legitimate Ends: Same-Sex Marriage Through the
Lens of Illegitimacy-Based Discrimination, 28 CARDOZO L. REV. 2373, 2375 (2007); Courtney G.
Joslin, Searching for Harm: Same-Sex Marriage and the Well-Being of Children, 46 HARV. C.R.-C.L.
L. REV. 81, 85 89 (2011); Ruth Butterfield Isaacson, Teachable Moments: The Use of ChildCentered Arguments in the Same-Sex Marriage Debate, 98 CAL. L. REV. 121, 131 51 (2010).
11. GARY J. GATES & JASON OST, THE GAY AND LESBIAN ATLAS 45 (2004). The exact number
of cohabitating same-sex couples with at least one child is unknown because there is a significant
undercount: lesbian couples and those involving a bisexual woman were twice as likely as other samesex couples to report that they live with a child to whom they had not given birth. See Todd Brower,
Its Not Just Shopping, Urban Lofts, and the Lesbian Gay-by Boom: How Sexual Orientation
Demographics Can Inform Family Courts, 17 AM. U. J. GENDER SOC. POLY & L. 1, 15 (2009) (citing
GARY J. GATES ET AL., ADOPTION AND FOSTER CARE BY GAY AND LESBIAN PARENTS IN THE UNITED
STATES 5 (2007)).
12. See Brower, supra note 11, at 27. Most recent estimates place the figure at roughly two
million children being raised by LGBT parents. See MOVEMENT ADVANCEMENT PROJECT, ALL
CHILDREN MATTER: HOW LEGAL AND SOCIAL INEQUALITIES HURT LGBT FAMILIES 1 (2011)
[hereinafter CHILDREN MATTER REPORT], available at http://www.americanprogress.org/issues/2011/
10/pdf/all_children_matter.pdf.
13. See Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 171 (1972) (
Both the statute in Levy
and the statute in the present case involve state-created compensation schemes, designed to provide
close relatives and dependents of a deceased a means of recovery for his often abrupt and accidental
death.).
14. CHILDREN MATTER REPORT, supra note 12, at 8. For a comprehensive discussion of the
benefits denied children in same-sex families, see id. at 5178. See generally LEE BADGETT, MONEY,
MYTHS AND CHANGE: THE ECONOMIC LIVES OF LESBIANS AND GAY MEN (2001).
15. CHILDREN MATTER REPORT, supra note 12, at 8.

Page 7 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1594

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

specifically designed to serve as safety nets to protect children within


family unitsbenefits that children of married parents obtain as a matter
of course.16
As a generation of children with gay and lesbian parents come of age in
significant numbers and begin to collectively assert their rights, anti-gay
policies that subject them to different treatment than their opposite-sex
parented peers will be subjected to further social and legal scrutiny.17
[
T]imes can blind us to certain truths and later generations can see that
laws once thought necessary and proper in fact serve only to oppress. As
the Constitution endures, persons in every generation can invoke its
principles in their own search for greater freedom.18 Children of same-sex
parents will change the face of the LGBT movement and push the
boundaries of this evolving social and legal battleground.19
This Article offers a blueprint for an equal protection challenge to
remedy government-sponsored discrimination against children of samesex parents. For practical purposes, this Article suggests that the ideal
plaintiff would be a child who has been denied a government benefit in a

no-protection state, who has same-sex parents, one biological and the
other non-biological, and where there is no legal relationship between the
child and the donor or surrogate. This Article also focuses on state-level
benefits and responsibilities. In this context, this Article first brings to the
forefront the unequal treatment of children of same-sex parents who are
denied equal treatment in comparison with marital children. It also
identifies the inadequacies of potential state justifications for the disparate
treatment of children with same-sex parents and offers a number of legal
strategies that states could adopt to remedy these unconstitutional
16. For a list of privileges that benefit mono-racial couples and opposite-sex parents, see Angela
Onwuachi-Willig & Jacob Willig-Onwuachi, A House Divided: The Invisibility of the Multiracial
Family, 44 HARV. C.R.-C.L. L. REV. 231, 236 (2009). There may be some children within
noprotection states who may receive benefits because their parents have managed to obtain a secondparent adoption from a lower court, however, it may be subjected to the same fate as Boseman should
a higher court strike down such adoptions as void. See infra notes 2434 and accompanying text.
17. Despite a long tradition of discrimination against nonmarital children, it escaped
constitutional review until 1968. See John C. Gray, Jr. & David Rudovsky, The Court Acknowledges
the Illegitimate: Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., 118
U. PA. L. REV. 1, 12 (1969).
18. Lawrence v. Texas, 539 U.S. 558, 579 (2003).
19. See Sarah Wildman, Children Speak for Same-Sex Marriage, N.Y. TIMES (Jan. 20, 2010),
http://www.nytimes.com/2010/01/21/fashion/21kids.html. COLAGE is probably the most well-known
organization focusing exclusively on the needs and interests of children of LGBT parents. See
generally COLAGE: PEOPLE WITH A LESBIAN, GAY, BISEXUAL, TRANSGENDER, OR QUEER PARENT,
http://www.colage.org/ (last visited Mar. 25, 2012); James G. Dwyer, Childrens Interests in a Family
ContextA Cautionary Note, 39 SANTA CLARA L. REV. 1053 (1999).

Page 8 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1595

practices.20 In Part II, the case is made plain that children of same-sex
parents in
no-protection statesstates that offer no state-wide legal
avenues to a child to create a legal relationship to their non-biological
parent21are treated differently than their opposite-sex parented peers,
both married and unmarried, and delineates how this disparate treatment
serves as the basis for an equal protection challenge. Part III lays out the
nonmarital status jurisprudence and explains why the disparate treatment
of children of same-sex parents warrants intermediate scrutiny. Parts IV
and V address likely state justifications centered on moral family
preservation arguments and those that may hinge on government-based
administrative efficiency arguments. Part V concludes by offering
potential state options to avoid the maintenance of an i
nsurmountable
barrier to children of same-sex couples to access government benefits.
Part VI offers a brief conclusion.
II. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS
The Equal Protection Clause of the Fourteenth Amendment provides
that [
n]o State shall . . . deny to any person within its jurisdiction the
equal protection of the laws.22 The equal protection mandate i
s
20. This Article is not advocating same-sex marriage as the only possible solution to remedy
potential constitutional violations. States have a number of channels through which they can establish
access to the legal system for children of same-sex parents that would place those children on equal
footing with children of opposite-sex parents. The vast majority of federal and state courts that have
addressed the constitutionality of laws that deny civil marriages to same-sex couples have applied a
rational basis level of Equal Protection review. See, e.g., Goodridge v. Dept of Pub. Health, 798
N.E.2d 941, 960 n.20 (Mass. 2003) (rational basis review, but not
toothless); In re Marriage of J.B.
and H.B., 326 S.W.3d 654, 681 (Tex. Ct. App. 2010). A few state courts, however, have applied
heightened review. See Kerrigan v. Commn of Pub. Health, 957 A. 2d 407, 482 (Conn. 2008)
(holding that law classifying on basis of sexual orientation, a quasi-suspect class, failed to meet
constitutional muster under intermediate scrutiny); Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993)
(applying strict scrutiny); Varnum v. Brien, 763 N.W.2d 863, 896904 (Iowa 2009) (applying
intermediate scrutiny to same-sex marriage ban). For a normative discussion of how states can
equalize access to the legal system and mitigate the disparate treatment of children of same-sex
couples by focusing on solutions within the current two-parent paradigm, see Catherine E. Smith,
Equal Protection for Children of Gay and Lesbian Parents: Challenging the Three Pillars of
ExclusionLegitimacy, Dual-Gender Parenting, and Biology, 28 LAW & INEQ. 307, 311 (2010).
21. This category of states include jurisdictions where same-sex couples are obtaining secondparent adoptions from lower courts and the highest court has not decided the issue yet. I have decided
to place these states in this category because the legal status of those relationships are uncertain and
subject to being void should the states highest court (or legislature) decide to reverse those lower
court decisions. See, e.g., Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010).
22. U.S. CONST. amend. XIV, 1. The Equal Protection Clause is binding on the federal
government via the Fifth Amendments Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497, 499
(1954); see also Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (explaining that the Court

Page 9 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1596

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

essentially a direction that all persons similarly situated should be treated


alike.23 As the next section explains, no
-protection states treat children
of same-sex parents differently than their opposite-sex parented peers. In
these states, it is impossible for a child of same-sex parents to establish a
legal relationship to a non-biological same-sex parent. The example of
Boseman v. Jarrell24 is illustrative.
In 2002 in Raleigh, North Carolina,
John Jarrell-Boseman was born
to Melissa Jarrell and Julia Boseman. John called Melissa M
ommy and
Julia M
om.25 From the early stages of Melissa and Julias courtship,
they discussed the prospect of having children.26 They eventually moved
in together and shared a home for two years before beginning the process
of having John.27 They jointly decided that Melissa would be the birth
mother, and, together, they selected the anonymous sperm donor, and
attended the medical appointments, the insemination and the postconception follow-up visits.28 Julia also assisted with Melissas pre-natal
care, including reading to John
in the womb and play[ing] music for
him.29 After he was born, John was baptized at Julias church where both
M
om and M
ommy held themselves out in front of their friends and
families as his parents.30
Although same-sex marriage is prohibited in North Carolina, at the
time John was born, a number of sympathetic lower court judges did grant
second-parent adoptions to gay and lesbian couples. When John was two,
a trial court in Durham County made him Julias legally adopted child.31
His entire life, John knew Julia and Melissa as his parents and s
how[ed]
32
lots of love and respect for both of them. After a contentious split
between Melissa and Julia, the North Carolina Supreme Court ruled that
the adoption creating eight-year-old Johns child-parent relationship to
Julia was v
oid ab initio and that [she] is not a legally recognized parent
has always treated
Fifth Amendment equal protection claims . . . precisely the same as . . . equal
protection claims under the Fourteenth Amendment).
23. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
24. 704 S.E.2d 494 (N.C. 2010).
25. Id. at 497 (internal quotation marks omitted).
26. Id. at 49697.
27. Id. at 497.
28. Id.
29. Id.
30. Id.
31. Id. at 49798.
32. Id. at 497 (internal quotation marks omitted).

Page 10 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1597

of [him].33 The court refused to recognize two women as Johns legal


parents.
The Boseman decision rendered Johns relationship with Julia legally
meaningless.34 John, and hundreds of other children with same-sex
parents, instantaneously lost a legal parent. The ruling voided the legal
relationships between those children and their non-biological same-sex
parents who previously had been granted adoptions, including those with
parents who remained a harmonious couple.35 The severance of those
legally cognizable relationships also precludes John, and children like him,
from securing a host of legal benefits and rights, such as inheriting through
intestate succession, from their non-biological same-sex parent.
Surprisingly to many people who assume that gays and lesbians live in
more liberal states, Mississippi, South Dakota, Alaska, South Carolina,
Louisiana, Alabama, Texas, Utah, and Arizona have the largest
concentrations of children with same-sex parents.36 Unfortunately, these
states are similar to North Carolina in that they offer no statewide legal
protections for children in same-sex families (or their parents).37
A sizable number of no
-protection states erect a legal blockadean
insurmountable barrierto the creation of a legal relationship between a
child and his or her non-biological same-sex parent.38 This legal blockade
results in the childs exclusion from significant rights and benefits that
other children enjoy.39 These states serve as ideal jurisdictions to pursue an
33. Id. at. 505.
34. Id.
35. See Nancy Polikoff, Second-parent adoption no longer available in North Carolina, but
nonbio mom can obtain custody; all previously granted adoptions void, BEYOND (STRAIGHT AND
GAY) MARRIAGE (Dec. 21, 2010), http://beyondstraightandgaymarriage.blogspot.com/2010/12/second
-parent-adoption-no-longer.html. The Boseman decision also precludes any future same-sex adoptions
absent legislative action. See Boseman, 704 S.E.2d at 505.
36. See Brower, supra note 11, at 19; Gates & Ost, supra note 11, at 46.
37. See Brower, supra note 11, at 19. Some of these jurisdictions may have trial courts that have
issued second-parent adoptions. See NATL CTR. FOR LESBIAN RIGHTS, Adoption by LGBT Parents,
http://www.nclrights.org/site/DocServer/2PA_state_list.pdf.
38. See Silverman, supra note 2, at 429 (
Even though both partners collaboratively decided to
have a child . . . in the eyes of the law the non-biological parent is deemed a legal stranger to the
child.).
39. Limited or
no-protection states include Alabama, Alaska, Arizona, Florida, Idaho, Indiana,
Kentucky, Louisiana, Michigan, Missouri, Mississippi, Montana, Nebraska, North Carolina, North
Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West
Virginia, and Wyoming. NATL CTR. FOR LESBIAN RIGHTS, supra note 37.
For a comprehensive overview of state laws prohibiting discrimination on the basis of sexual
orientation, see Maps of State Laws & Policies, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/
resources/entry/maps-of-state-laws-policies (last visited Mar. 25, 2012). Although this Article focuses
on
no-protection states, the arguments herein may be applicable in states that offer some protections
for gays and lesbians and their families.

Page 11 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1598

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

equal protection challenge on behalf of a child denied basic government


benefits simply because the childs parents are an unmarried same-sex
couple.
Some scholars and jurists argue that treating children of same-sex
couples differently makes sense because only opposite-sex couples can
produce a biological offspring that is DNA-related to both parents, and
marriage is the institution that c
ompletes the union between man,
woman, and child. With closer scrutiny, however, it is clear that neither
biology nor marriage is sacrosanct in decisions about legal parentage
determinations. Rarely is marriage, biology, or any other consideration the
sole criterion. More often than not, the determination of who is a legal
parent is constructed by law to serve what the state purports to be in the
best economic and psychological interest of the family unit and the
children within the unit.40 This Article argues that, when the well-being of
children and the family unit are articulated as reasons to develop legal
relationships between children and parents, the government cannot treat
some children differently based on the moral view of the parents
relationship without running afoul of the equal protection of laws.
A. The Legal Construction of Parenthood
Children of opposite-sex parents obtain legal relationships with their
parents through a number of legal channels, including marriage, biology,
and adoption.41 The predominant belief is that the primary source of
establishing a parent-child relationship is through marriage, and, although
it is not the only way, it certainly is the most legally beneficial to
children.42 The legal relationship established between a child born within a
marriage and the childs opposite-sex parents is derived automatically and
is rarely questioned.43 The child of married parents, whether the child is
biologically related to both of them or not, is entitled to an expansive
40. See Alice Ristroph & Melissa Murray, Disestablishing the Family, 119 YALE L.J. 1236,
125872 (2010).
41. This Article focuses on potential equal protection claims brought by children who were born
to same-sex couples, children whose same-sex parents planned to parent them from birth. Notably,
children whose same-sex parents chose to co-parent after the childs birth may have valid equal
protection claims under a states stepparentage laws.
42. See June Carbone & Naomi Cahn, Marriage, Parentage, and Child Support, 45 FAM. L.Q.
219, 22122 (2011); for a detailed discussion on parentage see Courtney Joslin, Marriage, Biology,
and Federal Benefits, 98 IOWA L. REV. 1480 (2012); Courtney Joslin, Protecting Children(?):
Marriage, Gender, and Assisted Reproductive Technology, 83 S. CAL. L. REV. 1177 (2010).
43. But see discussion in Paula Roberts, Truth and Consequences: Part II. Questioning the
Paternity of Marital Children, 37 FAM. L.Q. 55 (2003).

Page 12 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1599

catalogue of rights and benefits from private and public institutions,


simply by virtue of the childs birth to his or her married parents. As will
be discussed later, these benefits include financial support, state health
insurance, social security, workers compensation, wrongful death
recovery, and other privileges and benefits.44
As for children of unmarried opposite-sex parents, the primary way to
secure the rights and benefits equal to those of children born to married
children is through biology. Opposite-sex unmarried parents are presumed
to be responsible for their children and may establish a legal relationship
with their child through a number of state sanctioned mechanisms. The
mother-child biological connection, and thus the legal relationship, is
easily established. It is determining the biological connection to the father
that requires affirmative steps on the part of the father or child, and this is
the subject of most legislative and judicial actions and decisions about
legal parentage and government benefits. In most states, a biological father
can acknowledge paternity in a number of ways. 45 If paternity has never
been established by the father or has been contested by him (or third
parties) in some manner, the child may pursue a paternity action to
establish a legal relationship to his or her biological father in order to seek
the same rights and benefits of married children.46 In every state, there are
well-established procedures for children of unmarried opposite-sex parents
to create a legal relationship with their fathers in reliance on proof of
paternity.47
In every state, unmarried opposite-sex couples may also establish a
legal parent-child relationship through a simple mechanism available at
the hospital immediately before or after the birth of the child. A voluntary
acknowledgment of paternity (VAP), a part of the federal child support
enforcement statute, requires each state to establish such a process to
identify fathers.48 An unmarried couple may sign an affidavit that
voluntarily acknowledges that the male signing the form is the father of
the child.49 Although some VAP forms require that the parents believe that
44. See Cynthia R. Mabry, Who is the Babys Daddy (and Why is it Important for the Child to
Know)?, 34 U. BALT. L. REV. 211, 23334 (2004).
45. See James Lockhart, Cause of Action on Behalf of Child or Mother to Establish Paternity, 6
CAUSES OF ACTION 2d 1 (originally published 1994, updated Mar. 2013).
46. Id.
47. Id.
48. See Julia Saladino, Is a Second Mommy a Good Enough Second Parent?: Why Voluntary
Acknowledgments of Paternity Should be Available to Lesbian Co-Parents, 7 MOD. AM. 2, 2 (2011).
49. Id. at 3.

Page 13 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1600

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

the father is the biological father, many do not.50 Even in states that require
some belief of a biological connection, there is no independent verification
of the biological link.51
Despite the moral and cultural prioritization of both marriage (and its
underlying assumptions of monogamy, fertility, and biological link to
offspring) and biology, they do not serve as the sole determinants of who
may be a legal parent.52 States often address the ways in which individual
behaviors, qualities, and characteristics do not necessarily reflect the
states own optimal routingfirst courtship, then marriage, and then
children.
Often, and more increasingly, a gap exists between state marriage and
child rearing priorities and the reality of when people actually have
53
children. In an attempt to align (or realign) the reality with the explicit
marriage priority, states enact law and policy based on what is perceived
to be in the best interest of children and the family unit, irrespective of
biology. A primary example of such alignment is the legal fiction of the
marital presumption rule. In the majority of states, particularly no
protection states, a child born into a marriage is presumed to be the legal
child of the husband, even if the husband is not the childs biological
father.54 To avoid undermining the
integrity of the family, states
presume that the husband is the father of the child born into a married
household, even when the child is, in fact, the biological offspring of
50. Id.
51. For further discussion about VAPs, see Leslie Joan Harris, Voluntary Acknowledgments of
Parentage for Same-Sex Couples, 20 AM. U. J. GENDER SOC. POLY & L. 467 (2012).
52. See Ristroph & Murray, supra note 40, at 125170; David D. Meyer, Parenthood in a Time
of Transition: Tensions Between Legal, Biological, and Social Conceptions of Parenthood, 54 AM. J.
COMP. L. 125, 126 (2006) (
Biology is increasingly called upon to share its privileged status as the
foundation stone of parenthood with caregiving and other social values.); Lehr v. Robertson, 463 U.S.
248, 261 (1983) (finding that a biological link, by itself, does not merit
substantial protection under
the Due Process Clause in the way that demonstrating a full commitment to the responsibilities of
parenthood and child-rearing would); Quilloin v. Walcott, 434 U.S. 246, 25556 (1978) (denying a
biological fathers due process challenge to the mothers adoption of his child).
53. Brady E. Hamilton, Joyce A. Martin & Stephanie J. Ventura, Births: Preliminary Data for
2010, 60 NATL VITAL STATISTICS REPORTS 2, 4 (2011), available at http://www.cdc.gov/nchs/data/
nvsr/nvsr60/nvsr60_02.pdf (47.7% of births in 2010 were to unmarried women).
54. Michael H. v. Gerald D., 491 U.S. 110 (1989) (holding, in pertinent part, that Californias
marital presumption statute did not violate a putative natural fathers procedural or substantive due
process rights or the involved childs equal protection rights, where the putative natural father
submitted to the court a paternity test indicating a 98.07% probability of paternity and evidence of a
parent-like relationship with the child; also holding that the law did not violate the childs equal
protection rights); Jennifer L. Rosato, Children of Same-Sex Parents Deserve the Security Blanket of
the Parentage Presumption, 44 FAM. CT. REV. 74, 7576 (2006) (comparing the rights afforded
children of heterosexual married couples to those afforded children of same-sex couples).

Page 14 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1601

another man from the wifes adulterous affair.55 This presumption also
applies in many states where opposite-sex couples use a sperm donor due
to the husbands low sperm count or sterility.56 In other words, a child
born to a married couple through another sperm provider is presumed to
be a child of the marriage.57
Opposite-sex married couples may also establish a legal parent-child
relationship through adoption. They may adopt a child that is not
biologically related to either one of them. The opposite-sex couple must
prove their intent to parent the child, and complete the state-required steps
of adoption in order to establish a legal relationship to the child. The legal
relationship is imbued with the same parental obligations, rights, and
benefits of a child biologically related to his or her parents, or a child born
into a marriage.58 As the modern U.S. family changes, it is clear that
[
b]iology is increasingly called upon to share its privileged status as the
foundation stone of parenthood with caregiving and other social values.59
This section is not intended to be an exhaustive treatment of opposite-sex
family formation, but rather makes the point that, in order to protect the
rights and interests of children within an opposite-sex relationship, states
legally construct the parent-child relationship by purportedly focusing on
the well-being of the child and the basic safety nets and protections within
a family structure.60 States do not make determinations based on a single
factor of the marriage of the parents, a biological connection to parents, or
parental intent.
Yet, in n
o-protection states, the interests of children (and the family
unit) in same-sex families are ignored.61 While opposite-sex parents and
their children may establish legal relationships to one another through
marriage, biology, adoption, and other state-created channels, those
55. Rosato, supra note 54, at 75 n.16.
56. Id. at 75.
57. Id.
58. Utah allows only legally married couples to jointly adopt. See Child Welfare Info. Gateway,
Who May Adopt, Be Adopted, or Place a Child for Adoption?, CHILDRENS BUREAU 32 (2012),
http://www.childwelfare.gov/systemwide/laws_policies/statutes/parties.pdf.
59. Meyer, supra note 52, at 126. See also Lehr v. Robertson, 463 U.S. 248, 261 (finding that a
biological link, by itself, does not merit
substantial protection under the Due Process Clause in the
way that demonstrating a full commitment to the responsibilities of parenthood and child-rearing
would); Quilloin v. Walcott, 434 U.S. 246, 25556 (1978) (denying a biological fathers due process
challenge to the mothers adoption of his child). For a discussion of the de-emphasis of a biological
connection as a requisite to legal familial association, see Ristroph & Murray, supra note 40, at 5172.
60. In some situations, individuals may acquire some rights and responsibilities as to children as
de facto parents. See, e.g., MINN. STAT. 257.025 (2008) (granting custody rights to individuals
including stepparents and de facto parents when in the
best interests of the child).
61. Rosato, supra note 54, at 75.

Page 15 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1602

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

avenues remain closed to same-sex parents and their children.62 Although


biology establishes the legal link between the child and its same-sex birth
mother (or father through surrogacy), it is impossible for the nonbiological same-sex parent to establish a legal relationship to the child:
same-sex couples cannot marry;63 the same-sex non-biological parent is
not related by blood; gay and lesbian couples cannot adopt;64 and there is
no alternative legal mechanism for a same-sex non-biological parent to
voluntarily acknowledge or demonstrate an intent to parent their same-sex
partners biological child. It is also impossible for the child to
independently obtain a legal relationship to the non-biological same-sex
parent.65
As the next part explains, the failure of no
-protection states to
establish legal channels for children of same-sex parents to create a legally
recognized relationship to their non-biological parent ensures that they
will be denied countless state and federal benefits designed to provide
basic financial safety nets and facilitate the transfer of wealth.66 These
insurmountable barriers to establishing a legal relationship assure that
children of same-sex parents exist as a subset of nonmarital children who
can never be placed on an equal footing with marital children.
62. Melanie B. Jacobs, Micah Has One Mommy and One Legal Stranger: Adjudicating
Maternity for Nonbiological Lesbian Coparents, 50 BUFF. L. REV. 341, 34447 (2002). Some states
allow gay and lesbian parents to form a legally recognized relationship with a non-biological child. See
Polikoff, supra note 10, at 586 (asserting that parentage determinations
have become available in
many states through adoption decrees, orders of parentage, and, to a lesser extent, through the use of
equitable doctrine conferring some, if not all, of the indicia of parenthood).
63. In the vast majority of states, a childs same-sex parents cannot marry one another; only six
states and the District of Columbia allow same-sex couples to marry, and eleven other states allow
civil unions. See Interstate Relationship Recognition, HUMAN RIGHTS CAMPAIGN (May 27, 2011),
http://www.hrc.org/files/assets/resources/Interstate_Relationships_Recognition_Map(1).pdf.
64. Eighteen states and the District of Columbia allow second-parent adoptions, permitting nonbiological same-sex parent to legally adopt their partners child. See Parenting Laws: Second Parent
Adoption, HUMAN RIGHTS CAMPAIGN (Jan. 18, 2011), http://www.hrc.org/files/images/general/2nd_
Parent_Adoption.pdf. In eight other states, same-sex families have been successful in obtaining
second-parent adoptions in some jurisdictions. Id. Mississippi is the only state with an unchallenged
ban on gay and lesbian adoptions. See MISS. CODE ANN. 97-13-3(5) (West 2012).
65. Regardless of whether state level protections exist, children of LGBT parents are still at a
comparative disadvantage and must navigate a
patchwork quilt of laws to obtain a legal relationship
with their non-biological same-sex parent. Rosato, supra note 54, at 7576.
66. A childs non-biological same-sex parent is also denied rights and benefits as a result of the
lack of legal relationship with the child. For a more comprehensive discussion and list of rights,
benefits, and privileges denied such same-sex parents, see Graham, supra note 8, at 103437; Sam
Castic, The Irrationality of a Rational Basis: Denying Benefits to the Children of Same-Sex Couples, 3
MOD. AM. 3, 46 (2007); Jeffrey G. Gibson, Lesbian and Gay Prospective Adoptive Parents: The
Legal Battle, 26 HUM. RTS. 7, 711 (1999); Rosato, supra note 54, at 7576.

Page 16 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1603

B. The State Benefits Denied Children of Same-Sex Parents


As the previous section demonstrated, a majority of children with
same-sex parents live in n
o-protection states in which the non-biological
parent and child are precluded from forming a legal relationship. This
legal barricade results in the blatant exclusion of these children from the
rights, benefits, and privileges exercised by children of opposite-sex
parents.67 Children of same-sex couples are denied benefits offered by
both public and private institutions; this section, however, focuses
primarily on those denied by governmentespecially state government
actors. There is only one reported case of a benefit denial for social
security benefits, as will be discussed subsequently.68 This section
documents a list of state benefits that are subject to a denial of recovery for
children of same-sex parents, and, therefore, are ripe for an equal
protection challenge.69
1. State Benefits
Workers Compensation Workers compensation schemes provide
benefits to employees injured or killed in the workplace.70 Although each
state is different, most provide benefits for
dependents of employees
protected under the statute.71 The definition of dependent in no
protection states does not include the child of a non-biological same-sex
parent.72 Although the child may, in fact, be dependent upon the non67. For a list of benefits and privileges to which children of opposite-sex parents are entitled but
to which children of same-sex parents are denied, see Castic, supra note 66, at 46; John F. Coverdale,
Missing Persons: Children in the Tax Treatment of Marriage, 48 CASE W. RES. L. REV. 475, 50406
(1998).
68. See infra Part II.B.2.
69. The author can only speculate as to why there is no record of equal protection challenges that
have been brought by or on behalf of children in this context. It is likely that in the near future a child
will be denied a benefit and seek to challenge its constitutionality.
70. See, e.g., N.C. GEN. STAT. ANN. 97-3 (West 1973) (All employers and employees are

respectively to pay and accept compensation for personal injury or death by accident arising out of
and in the course of his employment . . . .).
71. See, e.g., N.C. GEN. STAT. ANN. 97-39 (West 1973) (
The widow, or widower and all
children of deceased employees [are] conclusively presumed to be dependents of deceased and [are]
entitled to receive the benefits of [compensation] . . . .).
72. See S.C. CODE ANN. 42-1-70 (1985) (
child shall include a posthumous child, a child
legally adopted prior to the injury of the employee and a stepchild or acknowledged illegitimate child
dependent upon the deceased, but does not include married children unless wholly dependent . . . .);
ALA. CODE 25-5-1 (1975) (
child or
children means
posthumous children and all other children
entitled by law to inherit as children of the deceased; stepchildren who were members of the family of
the deceased, at the time of the accident, and were dependent upon him or her for support . . . .).

Page 17 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1604

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

biological same-sex parents income at the time the parent is injured or


killed on the job, the child is prohibited from recovery.73
Inheritance When an individual dies without a will, the persons
property is distributed by the state under an intestacy scheme. For
opposite-sex married couples, an intestates spouse and legally recognized
-protection
children are entitled to some portion of the estate.74 In no
states, same-sex couples and their children are not recognized under this
scheme.75 Neither the same-sex partner nor the child of the same-sex
partner is legally recognized under the probate laws; both will be denied
the proceeds of the decedents estate, despite the fact that they are the
decedents immediate f
amily members. Instead, the proceeds of the
estate will go to those legally recognized in the probate code, after spouses
and children. Most probate codes then distribute the proceeds of the estate
to the parents and siblings of the person who has died. The child will be
denied inheritance to their non-biological parents estate even if the
decedent intended for the child to inherit from her estate.76
Support, Custody, and Visitation In no
-protection states, there are no
statewide avenues for the non-biological parent or the child to obtain the
corresponding right or obligation to child support, custody, or visitation.77
Child support is reserved for recognized legal parents of a child.
This has
the effect of removing from the child the very source of funds that may
have supported the child for a considerable period of time, especially if the
non-biological parent was the primary wage earner in the household.78
As for custody and visitation, the non-biological parent is viewed as a
legal stranger and, therefore, has no standing to seek custody of the child
or visitation. Further, the child also has no legal recourse to develop a
relationship with the non-biological parent.79 Another complexity of
73. Some states permit recovery based on dependency, as opposed to marriage or blood relation.
See Nancy D. Polikoff, Law that Values All Families: Beyond (Straight and Gay) Marriage, 22 J. AM.
ACAD. MATRIMONIAL L. 85, 97100 (2009).
74. Lee-ford Tritt, Sperms and Estates: An Unadulterated Functionally Based Approach to
Parent-Child Property Succession, 62 SMU L. REV. 367, 38081 (2009).
75. Id. at 382 (explaining that intestacy statutes use formal definitions to define the parent-child
relationship that exclude functional parents).
76. See id. at 40810.
77. Some of these states may have some lower court decisions that are an exception to this rule.
See COURTNEY JOSLIN & SHANNON MINTER, LESBIAN, GAY, BISEXUAL, AND TRANSGENDER FAMILY
LAW (2d ed. 2012).
78. Silverman, supra note 2, at 447. See also Castic, supra note 66, at 6.
79. See Silverman, supra note 2, at 448; Ledsham, supra note 10, at 2375; Sporleder v. Hermes,
471 N.W.2d 202 (Wis. 1991) (holding that a woman who sought custody and visitation of the
biological son of her former partner of eight years, whom the plaintiff had adopted, had no legal
standing for any claims).

Page 18 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1605

custody, support, and visitation rights arises if the biological parent dies.
The same-sex non-biological parent may be denied custody, and even
visitation, if a third party family member seeks legal custody of the child.80
Wrongful Death Wrongful death claims focus primarily on pecuniary
(economic) loss to the plaintiff from the negligent, reckless, or intentional
death of a loved one.81 Increasingly, states allow parties to recover for
their emotional suffering from the loss of a loved one as well.82 Although
the list of eligible plaintiffs varies by state, most limit wrongful death
recovery to the deceaseds spouse, children, parents, or siblings.83
Therefore, a child of a non-biological same-sex parent would not fit within
the statutory definition of a person entitled to file suit for her losses
resulting from the parents death caused by a negligent, reckless, or
intentional actor. The defendant in a potential lawsuit is granted a windfall
when they cause the death of a non-biological same-sex parent, because
the child is precluded from seeking recovery.
Bystander Recovery Most states allow a person to recover emotional
harm damages when they witness the serious bodily injury or death of a
family member caused by a defendants negligent or reckless conduct.84 In
order to limit the number of people who may recover under a bystander
claim, state statutes and courts only permit claims by bystanders who are
the spouse, legal child, or parent of the injured party. A child of a nonbiological same-sex parent does not fall within the definition of a legal
child of the injured party.
Civil Service A child whose non-biological same-sex parent works for
the state is denied a laundry list of benefits that children of opposite-sex
80. See Theresa Glennon, Binding the Family Ties: A Child Advocacy Perspective on SecondParent Adoptions, 7 TEMP. POL. & CIV. RTS. L. REV. 255, 258260 (1998); CHILDREN MATTER
REPORT, supra note 12, at 48 (After fatal accident kills bio mother of five year old boy, West Virginia
Supreme Court affirms reversal of lower court decision denying surviving non-bio mother custody).
81. For further explanation of wrongful death statutes and the limitations therein, see John G.
Culhane, A Clanging Silence: Same-Sex Couples and Tort Law, 89 KY. L.J. 911, 95359 (2001);
Andrew J. McClurg, Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death
Damages, 85 B.U. L. REV. 1 (2005).
82. See, e.g., Green v. Bittner, 424 A.2d 210, 216 (N.J. 1980) (
[W]e know of no public policy
which would prohibit awarding damages that fully compensate . . . for the emotional suffering caused
by the [wrongful] death.).
83. In addition to denying recovery to a child that is not a
child in the eyes of a given states
law, these statutory limitations also prevent recovery by family members not falling into the traditional
nuclear family. See Culhane, supra note 81, at 94263.
84. See Meredith E. Green, Who Knows Where the Love Grows?: Unmarried Cohabitants and
Bystander Recovery for Negligent Infliction of Emotional Distress, 44 WAKE FOREST L. REV. 1093,
109496 (2009).

Page 19 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1606

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

parents obtain, including medical and dental benefits,85 life insurance, and
the presence of their non-biological parent for parental and family leave.86
2. Social Security and Federal Benefits Dependent on State
Definitions of Legal Parentage
In addition to state benefits, children of same-sex parents in nonmarriage equality states are also denied federal benefits that hinge on the
state definition of marriage and legal parentage, the most significant being
social security.87
Under the Social Security Act, a dependent child may receive monthly
Child Insurance Benefits (CIB) of a wage earner who retires, suffers a
disability, or dies.88 The determination of who may recover relies on the
state definition of
natural child, which in no
-protection states excludes
children as it relates to the non-biological same-sex parent.89 In one of the
few reported cases of an actual benefit denial to a child of same-sex
parents, Nicolaj Caracappa was refused federal social security benefits
because his non-biological mother was not recognized as a legal parent.
Although New Jersey then offered second-parent adoption and the couple
failed to obtain one, the case demonstrates the actual economic injury that
can occur to a child.
85. See Phillips v. Wis. Pers. Commn, 482 N.W.2d 121 (Wis. Ct. App. 1992) (upholding lower
courts dismissal of state employees employment discrimination complaint, which was filed following
denial of the employees application for family health insurance coverage for her female partner,
holding that limiting dependent health insurance coverage to employees spouses and children doesnt
violate marital status, sexual orientation, or gender provisions of the Wisconsin Fair Employment Act);
Hinman v. Dept of Pers. Admin., 167 Cal. App. 3d 516 (1985); Silverman, supra note 2, at 443.
86. See, e.g., Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 95657 (Mass. 2003) (listing
state benefits of marriage, including many that extend to children); id. at 95657 (
the fact remains
that marital children reap a measure of family stability and economic security based on their parents
legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital
children.).
87. In light of the Supreme Courts ruling in United States v. Windsor, 133 S. Ct. 786 (2012),
children in marriage equality states are now eligible for both state and federal benefits. There are a
host of federal benefits that a child of same-sex parents in non-marriage states may be denied,
including social security, welfare benefits, family medical leave, tax, and rights under immigration
law. See Castic, supra note 66, at 46. Windsor was decided as this Article moved to publication. For a
more complete discussion of Windsor and its effects, see Catherine E. Smith, Windsors Progeny
(forthcoming) (on file with author).
88. See Robert E. Rains, DOMA and the Social Security Act: An Odd Couple Begetting
Disfavored Children, 55 ST. LOUIS. U. L.J. 811 (2011).
89. See id. at 84749.

Page 20 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1607

In March 1998, Nicolaj Caracappa was born to Eva Kadray and


Camille Caracappa.90 At the time, New Jersey did not allow same-sex
marriage or civil unions. After several years in a committed relationship,
Eva and Camille planned for and participated in the alternative
insemination, pre-natal care, birth and child-rearing of Nicolaj.91 Eva was
the biological mother of Nicolaj, and she and Camille agreed that Eva
would stay home with their child, while Camille worked as their sole
financial provider as an oncology nurse.92 Eva and Camille lived together,
jointly owned their home, commingled their finances, and shared joint
bank accounts.93 They gave Nicolaj Camilles last name and baptized him
as his parents in their Catholic Church. Although second parent adoption
was available in New Jersey, the couple decided to wait on an adoption
until their second child was born, so that they could do both adoptions
together. Tragically, Camille died of a brain aneurysm before the adoption
of Nicolaj could be completed. Despite the fact that Nicolaj was
financially dependent on his non-biological mother, Camille Caracappa,
an administrative law judge denied the request for social security benefits
because the record did not contain evidence of a valid marriage or
documentation that Nicolaj is the na
tural/biological child of Camille
colaj S. Caracappa is
Caracappa.94 The judge ultimately concluded that Ni
not the child of the deceased insured wage earner, Camille Caracappa, as
that term is defined in . . . the Social Security Act and Regulations . . . .95
It was clear that they viewed themselves as a family and that she intended
to allow Nicolaj to recover based on her years of hard work and payment
of taxes. Significantly, in no
-protection states, children of same-sex
parents would have absolutely no recourse because these states do not
allow any legal channel to a legal relationship.96 In addition to social
security, the childs family may also be denied welfare benefits and other
federal rights.97
90. Nicolaj Sikes Caracappa, Soc. Sec. Admin. Off. (Mar. 30, 2004) (finding
Nicolaj S.
Caracappa is not the child of the deceased insured wage earner, Camille Caracappa, as that term is
defined in . . . the Social Security Act and Regulations . . . .).
91. Id.
92. Id.
93. Id. at 5.
94. Id. (emphasis in original).
95. Id.
96. Recovery appears promising for children in states that allow same-sex marriage and adoption
by same-sex couples, where their parent(s) take advantage of those legal options. See Rains, supra
note 88, at 84951.
97. See CHILDREN MATTER REPORT, supra note 12, at 5759; Catherine Smith, Queer as Black
Folk?, 2007 WIS. L. REV. 379, 40207 (2007).

Page 21 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1608

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

This section offers merely a brief list of benefits that children of samesex parents are denied. The individual and collective denial of government
benefits to children of same-sex parents has detrimental economic
consequences on them to which children of married opposite-sex parents
are not subjected, and it is constitutionally suspect based on historical
precedentthe disparate treatment of nonmarital children.
III. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS
WARRANTS INTERMEDIATE SCRUTINY
More than forty years ago, the United States Supreme Court held that
government-based distinctions treating nonmarital children differently
than marital children because of moral disdain of the parents relationships
were impermissible.98 Today, government exclusions of children of samesex parents serve as the modern-day equivalent in which states draw
distinctions on the basis of a childs parents nonmarital status to deny
them equal protection of the laws.99
A. The Equal Protection Law of Nonmarital Children
The United States has a long history of discrimination against children
born to unmarried parents. At common law, nonmarital children were
filius nullius or the c
hild of nobody.100 By virtue of societys moral
condemnation of their parents conduct, they were denied social and legal
benefits to which children born to married parents were entitled. They
were considered non-persons who could not inherit, obtain financial
parental support, wrongful death recovery, social security, and countless
other benefits.101 They were also subjected to extensive social ostracism.102
The criticism of the legal treatment of nonmarital children began in the
early 1940s and was eventually swept into the political and legal debates
98. For a brief history of nonmarital children, see KRAUSE, supra note 1, at 18.
99. For similar arguments, see Debra Carrasquillo Hedges, The Forgotten Children: Same-Sex
Partners, Their Children and Unequal Treatment, 41 B.C. L. REV. 883, 898902 (2000); Ledsham,
supra note 10, at 237886.
100. 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *459 (
rights [of a
nonmarital child] are very few, being only such as he can acquire; for he can inherit nothing, being
looked upon as the son of nobody . . . .) (emphasis in original); Ledsham, supra note 10, at 2373;
Gareth W. Cook, Bastards, 47 TEX. L. REV. 326, 327 n.11 (1969).
101. See Solangel Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against
Nonmarital Children, 63 FLA. L. REV. 345, 34647 (2011).
102. Id. See also KRAUSE, supra note 1, at 18.

Page 22 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1609

of the civil rights movement.103 In 1944, New York City judge and child
rights advocate Justine Wise Polier documented the disparate treatment of
nonmarital children in an article entitled Illegitimacy and the Law, which
called for legislative action to address their plight.104
In the early 1960s, litigators challenging illegitimacy did not seek a
child-focused strategy alone but incorporated the unfair treatment of
nonmarital children as a component of a more expansive civil rights
agenda. Nonmarital status laws disproportionately impacted AfricanAmerican and impoverished children, and therefore seemed like a natural
subset of a larger race and poverty-based platform.105 Professor Martha
Davis explains that, despite early efforts to remedy discrimination against
nonmarital children by linking it to the civil rights movement, courts
s
howed little interest in addressing the interrelationships among poverty,
race, gender, and illegitimacy . . . .106 In response, litigators turned to
framing illegitimacy as a classification itself.107
At the forefront of this movement was Professor Harry D. Krause.108 In
1966, in his article, Equal Protection for the Illegitimate, he documented
the ways in which children born to unmarried parents were denied private
and government benefits and urged courts to strike down such statutes as
violative of the right to equal protection of laws.109 He insisted that,
instead of courts persistent focus on the rights of the parents,
[i]t [was]
time that the matter be considered from the standpoint of the child!110 In
103. See Martha F. Davis, Male Coverture: Law and the Illegitimate Family, 56 RUTGERS L. REV.
73, 90 (2003) (asserting that early efforts by lawyers to frame illegitimacy arguments around
childrens rights was an effective short-term strategy, but that strategy left unanswered many questions
about parents rights and perpetuated elements of so-called
male coverture within the law).
104. Id. at 9091 (citing JUSTINE WISE POLIER, ILLEGITIMACY AND THE LAW 13 (1944) (NOW
Collection, Box 45, Folder 555, on file with the Schlesinger Library, Radcliffe Inst., Harvard Univ.)).
105. See Brief for NAACP Legal Defense Fund as Amicus Curiae Supporting Respondents at 18
n.17, Levy v. Louisiana, 391 U.S. 68 (1968); KRAUSE, supra note 1, at 18.
106. See Davis, supra note 103, at 92 (citing Jefferson v. Hackney, 406 U.S. 535 (1972))
(explaining the inability of civil rights litigation that is focused on race, gender, and poverty to directly
address the plight of nonmarital children, due to the Supreme Courts refusal to extend heighted
scrutiny to disparate racial impact of illegitimacy laws).
107. Id. (critiquing child-focused strategy because it ignored the familial context of these cases
and left the door open for laws discriminating against out-of-wedlock parents based on persistent race
and sex stereotypes).
108. See Harry D. Krause, Bringing the Bastard Into The Great SocietyA Proposed Uniform Act
on Legitimacy, 44 TEX. L. REV. 829 (1966); Harry D. Krause, Equal Protection for the Illegitimate, 65
MICH. L. REV. 477 (1967).
109. See Krause, Equal Protection for the Illegitimate, 65 MICH. L. REV. 477 (1967); Davis, supra
note 103, at 8489 (delineating the distinctions in rights afforded children born within marriages to
those born to un-married parents in terms of wrongful death, inheritance, custody, domicile and
adoption).
110. See Krause, supra note 109, at 484.

Page 23 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1610

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

1968, in reliance on a line of racial discrimination cases including


Korematsu v. United States111 and Hirabayashi v. United States,112 Krause
and civil rights lawyer Norman Dorsen advanced their child-oriented
arguments to the Supreme Court in Levy v. Louisiana,113 the first case to
bring an equal protection challenge on behalf of nonmarital children.114
Louise Levy, an unmarried African American mother with five young
children, went to a state hospital with dizziness, chest pains, and slowness
of breath. The attending physician failed to take her blood pressure or
conduct any tests. A week later, when she returned with worse symptoms,
the doctor told her that she was not taking her medication and
recommended a psychiatrist. She died ten days later.115 Thelma Levy,
Louise sister, sued Louisiana on behalf of the Levy children who were
prohibited from a r
ight to recover because they were born outside of
marriage.116 The Louisiana Court of Appeals affirmed the trial courts
dismissal of the childrens claim on the grounds that they were not
l
egitimate, insofar as
morals and general welfare . . . discourage[]
bringing children into the world out of wedlock.117 The Supreme Court
reversed the Louisiana decision.118
The attempts of civil rights advocates to link nonmarital status laws to
larger forms of social discrimination like race, poverty, and gender, were
unsuccessful; however, the influence of the civil rights cases was clearly
present in the early nonmarital status cases.119 The rights of nonmarital
children developed simultaneously with the Supreme Courts
conceptualization of modern equal protection jurisprudence. Levy and the
111. 323 U.S. 214 (1944).
112. 320 U.S. 81 (1943).
113. 391 U.S. 68 (1968).
114. See Br. for Appellee at 15, Levy v. Louisiana, 391 U.S. 68 (1968) (No. 508), 1968 WL
112826 (citing Bolling v. Sharpe, 347 U.S. 497 (1954)); Korematsu v. United States, 323 U.S. 214,
216 (1944); Hirabayashi v. United States, 320 U.S. 81, 100 (1943) (asserting that
[d]istinctions
between citizens solely because of their ancestry are by their very nature odious to a free people whose
[Krause] was
institutions are founded upon the doctrine of equality); Davis, supra note 103, at 94 (
contacted by Adolph Levy, a Louisiana lawyer handling a wrongful death case on behalf of the estate
of Louise Levy . . . .).
115. John C. Gray, Jr. & David Rudovsky, The Court Acknowledges the Illegitimate: Levy v.
Louisiana and Glona v. American Guarantee & Liability Insurance Co., 118 U. PA. L. REV. 1, 23
(1969).
116. Id.
117. Id. at 3 (quoting Levy v. Louisiana, 192 So. 2d 193, 195 (La. Ct. App. 1967)). The Louisiana
Supreme Court denied certiorari because it found the Court of Appeals made no error of law.
118. Levy v. Louisiana, 391 U.S. 68 (1968).
119. Laurence C. Nolan, Unwed Children and Their Parents Before the United States Supreme
Court from Levy to Michael H.: Unlikely Participants in Constitutional Jurisprudence, 28 CAP. U. L.
REV. 1, 26 (1999).

Page 24 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1611

early nonmarital status cases were shaped by, and presumably shaped, the
evolving law on the tiers of scrutiny and the factors that would ultimately
be deployed to sort different classifications into the assignment-of-rightspecking-order that now exists. For example, in striking down the right to
recover statute, the Levy Court, citing Brown v. Board of Education,120
explained, wehave been extremely sensitive when it comes to basic civil
rights and have not hesitated to strike down an invidious classification
even though it had history and tradition on its side.121 The Court
concluded that Louisiana was driven by invidious discrimination because
the childs status as
illegitimate had nothing to do with the wrong
inflicted on the mother.122 The child engaged in no action or conduct that
contributed to the mothers injuries.
In the same year as Levy, the Court decided a companion case, Glona v.
American Guarantee & Liability Insurance Co.,123 in which Minnie Glona
was denied wrongful death recovery for the death of her son because he
was born outside of marriage.124 Louisiana law required a decedent be
l
egitimate in order for an ascendant, in this case his mother, to recover
sin
under wrongful death law.125 Louisiana argued that it could deal with
selectively and was permitted to treat parents of i
llegitimate children
differently than parents of l
egitimate ones.126 The Supreme Court
disagreed, reversing the lower courts ruling because there was no causal
connection between the law and the s
in of having children outside of
marriage; it was unlikely that women would get pregnant in order to reap
the benefits of wrongful death recoveries. There was no doubt that Minnie
Glona was the mother of the child wrongfully killed, and Louisiana could
not withhold relief because the child was born outside of marriage. 127
Further, the Court stated that to allow such claims would result in a
windfall to tortfeasors.128
120. 347 U.S. 483 (1954).
121. Levy, 391 U.S. at 71 (internal citations omitted); see also Oyama v. California, 332 U.S. 633,
646 (1948) (
[a]s a general rule, Distinctions between citizens solely because of their ancestry are by
their very nature odious to a free people whose institutions are founded upon the doctrine of
equality.) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
122. Levy, 391 U.S. at 72; see also Glona v. Am. Guar. & Liab. Ins. Co., 391 U.S. 73 (1968)
(invalidating a Louisiana statute that barred recovery for damages to the mother of an illegitimate
child, while allowing recovery to the parents of a legitimate child under the Fourteenth Amendments
Equal Protection Clause); Plyler v. Doe, 457 U.S. 202, 216 (1982).
123. 391 U.S. 73 (1968).
124. Id. at 7374.
125. Id. at 7475.
126. Id. at 7576.
127. Id. at 76.
128. Id. at 75.

Page 25 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1612

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

Three years later in Labine v. Vincent,129 the Supreme Court appeared


to retreat from its stance in Levy and Glona by denying a child born out of
wedlock inheritance from her father who died without a will.130 The
childs mother and father jointly acknowledged before a notary that Rita
Vincent was their natural child.131 However, under Louisiana law, the
public acknowledgment did not give Rita a legal right to share equally as
if she were a legitimate child.132 The Louisiana trial courts decision to
deny Rita inheritance rights and to award the inheritance to the fathers
brothers and sisters was upheld by the Louisiana Court of Appeals.133 In
arguments to the Supreme Court, Rita relied on Levy and Glona, and
asserted that her exclusion from recovery of a share of her fathers estate
was invidious discrimination in violation of the Equal Protection
Clause.134 The Supreme Court rejected her equal protection argument as
misplaced because, unlike Levy, this was not a situation in which the state
c
reated an insurmountable barrier to the nonmarital child.135 With
limited reference to the equal protection principles previously articulated
in Levy and Glona, the Labine Court held that Louisiana had the power to
make laws for the distribution of property, and, within the confines of the
state law, the father could have legitimated Rita a number of ways,
including by marrying the mother, formulating a will, or stating his desire
to legitimate his daughter in an acknowledgment.136 The father failed to
comply with the states basic formalities, and as such, his actions (or
inactions), not those of the state, resulted in the denial of inheritance.137
While Labine is difficult to align with the equal protection analyses in
Levy and Glona,138 it did articulate a baseline below which government
could not tread: states cannot create an insurmountable barrier to the father
or the nonmarital child to establish a legal relationship. A year later in
129. 401 U.S. 532 (1971).
130. See id. at 540.
131. Id. at 533.
132. Id.
133. Id. at 535.
134. Id.
135. Id. at 539. In dissent, Justice Brennan pointed out the inconsistency in the
insurmountable
barrier position in Labine when compared to the position taken in Levy, which did not involve an
insurmountable barrier; the plaintiff in Levy could have formally acknowledged her children and
recovery would have been allowed under Louisiana law. Id. at 55051 (Brennan, J., dissenting). See
also Nolan, supra note 119, at 13.
136. Labine, 401 U.S. at 539 (Brennan, J., dissenting); see id. at 553 (discussing in depth the
problem of attaching obligations of husband and wife to those of father to child.).
137. Id. at 539.
138. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 14.1514.16, at 869
70, 872 (7th ed. 2000).

Page 26 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1613

Weber v. Aetna Casualty & Surety Co., the Supreme Court once again
expanded the rights of nonmarital children.139
In Weber, the Supreme Court struck down another Louisiana provision
that awarded workers compensation proceeds to a deceased workers
children born of his marriage, but denied those same proceeds to children
born outside of the marriage.140 Henry Clyde Stokes died of work-related
injuries and, at the time of his death, was living with Willie Mae Weber.141
Stokes and Weber were not married but maintained a household of five
children.142 One of the children was born to Stokes and Weber, while four
others had been born to Stokes and his wife, Adlay Jones, who had
previously been committed to a mental hospital.143 Weber and Stokes
second child was born shortly after Stokes death.144
The four marital children filed a workers compensation claim for their
fathers death, and Willie Mae Weber claimed compensation benefits on
behalf of the nonmarital children.145 Under Louisiana workers
compensation law, however,
unacknowledged illegitimate146 children
were not treated the same as children born to married parents.147 They
were considered o
ther dependents entitled to recovery only if surviving
dependents in line before them did not exhaust the maximum benefits.148
The four children from Stokes marriage were awarded the maximum
allowable amount, leaving the two children from the nonmarital
partnership between Stokes and Weber with nothing.149 In reversing the
Louisiana Supreme Court, and again articulating the more expansive
principles in Levy and Glona, the Weber Court explained that treating
children born outside of marriage differently than those born inside it is
impermissible discrimination.150 The Weber Court reasoned that
[a]n
139. 406 U.S. 164 (1972).
140. Id. at 17576.
141. Id. at 165.
142. Id.
143. Id.
144. Id.
145. Id. at 16566.
146. Id. at 168. It was not possible for Stokes, the father in Weber, to acknowledge his two
children because Louisiana law prohibited acknowledgment of children whose parents were incapable
of marrying at the time of conception. At the time of conception, Stokes remained married to Jones,
making it impossible for him to marry Weber. Id. at 171 n.9.
147. Id. at 16768 (noting that the Louisiana law allowed
legitimate children and acknowledged
illegitimates equal recovery, while relegating
[u]nacknowledged illegitimate children to a lesser
status).
148. Id. at 168.
149. Id. at 167.
150. Id. at 169.

Page 27 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1614

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

unacknowledged illegitimate child may suffer as much from the loss of a


parent as a child born within wedlock or an illegitimate later
acknowledged.151
Weber, the most well-known and cited nonmarital status case,
reiterated that a state may not place its moral objection of a childs
parents conduct at the feet of the child by withholding government
benefits. To do so places the child at an economic disadvantage for
conduct over which the child has no control. Further, this punishment
speaks of invidious animus as opposed to serving some legitimate
governmental purpose. Invoking previous concerns of the
insurmountable
barrier raised in Labine, the Weber Court found such treatment of
nonmarital status children to be particularly concerning as
[t]he burdens
of illegitimacy, already weighty, become doubly so when neither the
parent nor child can legally lighten them.152
In an interesting mix of developing civil rights doctrine and the basic
economic and social protection of children, these early cases laid the
foundational principles of the law of nonmarital children.153 From 1968 to
1986, the Supreme Court heard more than a dozen cases before explicitly
holding that classifications treating nonmarital children differently than
marital children warranted intermediate scrutiny.154 The rationales
articulated in Levy, Glona, Labine, and Weber were part and parcel of
early civil rights and equal protection jurisprudence and spoke to the
importance of the social and economic rights unique to children.155
Today, it is well-settled equal protection law that the government may
not treat children born outside of a marriage differently than those born
within one without the treatment being subjected to intermediate
scrutiny.156 States are required to place nonmarital children on equal
footing with marital children unless there is a legitimate justification for
the unequal treatment.157 State statutes and the Uniform Parentage Act
reflect this equal protection mandate for children of unmarried opposite151. Id.
152. See id. at 171.
153. See Nolan, supra note 119, at 3637.
154. See Clark v. Jeter, 486 U.S. 456, 465 (1988) (holding that Pennsylvania statute was
unconsitutional under intermediate or
heightened scrutiny).
155. See Nolan, supra note 119, at 3637.
156. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 748 (2d ed.
2002).
157. In practice, there continue to be areas in which nonmarital children are not treated identical to
marital children, such as intestate succession, citizenship, and financial support. See Maldonado, supra
note 101, at 349 (
This Article demonstrates that, despite statements to the contrary, the law continues
to discriminate against nonmarital children, imposing economic, social, and psychic harms.).

Page 28 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1615

sex couples.158 Every state has procedures for a father to l


egitimate a
child, and procedures for the child (or a third party) to establish paternity,
so that the child can pursue the benefits accorded children of married
parents.159 As a society, we view the availability of these paternity
procedures as necessary in modern times; however, they did not
materialize out of thin air. It took the Supreme Courts recognition that
state-driven moral judgment and invidious animus punished children of
unmarried different-sex parents, inflicting unconstitutional injuries. The
next logical progression must include equalizing the status of a subset of
nonmarital childrenchildren with same-sex parents.
Three key fundamental principles were relied upon to apply
intermediate scrutiny to nonmarital children. First, governments cannot
punish their citizens for conduct over which they have no control.160
Second, and related to the immutability of a childs status of birth, the
government cannot treat the nonmarital child differently based on moral
objection to the parents relationship over which the child has no control.
To do so is a form of punishment that is likely driven by impermissible
invidious animus.161 The third fundamental principle relied upon to apply
intermediate scrutiny to nonmarital children was that the denial of
government benefits impacts such childrens economic and social
interests.162
B. Children of Same-Sex Parents As a Subset of Nonmarital Children
Today, children of same-sex parents are in a similar position to
children of unmarried opposite-sex parents forty years ago. They exercise
no control over their parents conduct, yet, because of the states
158. See id. at 347; UNIF. PARENTAGE ACT 202 (2002) (
A child born to parents who are not
married to each other has the same rights under the law as a child born to parents who are married to
each other.); see also COLO. REV. STAT. ANN. 19-4-103 (West 2005); MINN. STAT. ANN. 257.53
(West 2007); NEV. REV. STAT. ANN. 126.031 (West 2008).
159. COLO. REV. STAT. ANN. 19-4-104 (West 2005).
160. See Glona v. Am. Guar. & Liab. Ins. Co., 391 U.S. 73, 75 (1968) (finding that basic equal
protection principles require that even when a citizen has control (as the mother of the nonmarital
child), there must be a causal connection between the states regulation and the citizens conduct).
161. See id. at 75 (
[W]e see no possible rational basis for assuming that if the natural mother is
allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be
served. It would, indeed, be farfetched to assume that women have illegitimate children so that they
can be compensated in damages for their death.); Levy v. Louisiana, 391 U.S. 68, 72 (1968) (
[I]t is
invidious to discriminate against [illegitimate children] when no action, conduct, or demeanor of theirs
is possibly relevant to the harm that was done the mother.).
162. Id. at 71.

Page 29 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1616

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

imputation of immorality upon them, they suffer concrete economic


injuries.
1. Children of Same-Sex Parents Have No Control Over Their
Parents Conduct or Their Status of Birth
Classifications that deny children of same-sex parents government
benefits do so based on an immutable characteristictheir status as
children of gays and lesbians.163 Although most lawyers are well aware of
the concept of immutability in race-based equal protection cases, a
persistent strand of immutability principles, even if less well known, exists
in the nonmarital status cases. The Weber Court, citing a number of cases
including Brown v. Board of Education, explained that i
mposing
disabilities on the illegitimate child is contrary to the basic concept of our
system that legal burdens should bear some relationship to individual
responsibility or wrongdoing.164 The Court expressed its view that it
could not prevent the social disapproval of children born outside of
marriage; it could, however,
strike down discriminatory laws relating to
status of birth.165 The early immutability concepts in the nonmarital status
cases also influenced the subsequent equal protection law. A year later, in
a plurality opinion, the Supreme Court relied on Webers immutability
rationales to argue for heightened scrutiny for gender classifications.166
163. This Article does not endorse the view that immutability is a required factor for heightened
classification. For decisions that deny heightened scrutiny to parties claiming sexual orientation
discrimination in reliance on the immutability factor, see High Tech Gays v. Defense Indus. Sec.
Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076
(Fed. Cir. 1989); Rich v. Secy of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984).
164. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972). See also City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 441 (1985) (
Because illegitimacy is beyond the individuals
control and bears no relation to the individuals ability to participate in and contribute to society,
official discriminations resting on that characteristic are also subject to somewhat heightened review.
Those restrictions will survive equal protection scrutiny to the extent they are substantially related to a
legitimate state interest.) (quoting Mills v. Habluetzel, 456 U.S. 91, 99 (1982)); Mathews v. Lucas,
427 U.S. 495, 505 (1976) (stating that status of illegitimacy
is, like race or national origin, a
characteristic determined by causes not within the control of the illegitimate individual).
165. Weber, 406 U.S. at 176 (citing Graham v. Richardson, 403 U.S. 365 (1971), Hunter v.
Erickson, 393 U.S. 385 (1969), Brown v. Board of Education, 347 U.S. 483 (1954), and Hirabayashi v.
United States, 320 U.S. 81 (1943)).
166. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (
[S]ince sex, like race and national
origin, is an immutable characteristic determined solely by the accident of birth, the imposition of
special disabilities upon the members of a particular sex because of their sex would seem to violate
the basic concept of our system that legal burdens should bear some relationship to individual
responsibility . . . .) (quoting Weber, 406 U.S. at 173); see also M. Katherine Baird Darmer,
Immutability and Stigma: Towards a More Progressive Equal Protection Rights Discourse, 18 AM.
U. J. GENDER SOC. POLY & L. 439 (2010).

Page 30 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1617

Many in the United States believe that same-sex relationships are


immoral and run counter to traditional family values. One of the primary
contentions is that sexual orientation is a choice, not an immutable
characteristic. This Article does not wade into this debate; it is undeniable,
however, that children of gays and lesbians have no control over their
parents conduct (or the rest of the countrys response to their parents
conduct). They can do nothing about the reality that their biological (or
adopted) parent and that parents same-sex partner (the childs nonbiological parent) decided to have a child.
A central tenet of modern equal protection law is that it is unfair to
discriminate against an individual because of a trait or characteristic
derived at birth that cannot be changed.167 The nonmarital status cases
repeatedly recognized this core principle, and it has also been invoked in
other contexts to prohibit discrimination against children.168 In Plyler v.
Doe, school-age children of Mexican origin brought an equal protection
challenge to a Texas statute that withheld state funds from local school
districts that chose to enroll and educate children not
legally admitted to
the United States.169 In striking down the provision, the Supreme Court
made a distinction between individuals illegally in the United States as a
result of their own conduct and the children of these individuals. The
Court explained that these children c
an affect neither their parents
conduct nor their own undocumented status, and that to legislate against
them doe
s not comport with fundamental conceptions of justice.170 As
with nonmarital status children and undocumented children, children of
same-sex parents are born into or become members of the gay- or lesbianheaded household through no individual action on their part.
2. Imputing Immorality to the Child to Deny Basic Safety Nets Is
Impermissible
Children of same-sex parents are denied basic safety nets because no
protection states morally disagree with their parents gay or lesbian
167. See, e.g., Weber, 406 U.S. at 17576; Mathews, 427 U.S. at 505 (
[T]he legal status of
illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not
within the control of the illegitimate individual, and it bears no relation to the individuals ability to
participate in and contribute to society.); see also ERWIN CHEMERINSKY, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 688 (4th ed. 2011) (stating that the applicable level of equal protection
scrutiny is determined in part based on whether the characteristic distinguishing the class being
discriminated against is immutable).
168. See Plyler v. Doe, 457 U.S. 202, 21920 (1982).
169. Id. at 205.
170. Id. at 220.

Page 31 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1618

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

relationships and proceed to impose their moral judgment on the children


those relationships produce.
Moral justifications invoked as a shield to insulate the governments
disparate treatment of nonmarital child litigants have been routinely
rejected as unrelated to the underlying purpose of the government statutes
in question and clearly driven by invidious discrimination.171 The degree
of malice and bigotry directed toward LGBT people and their families in
no
-protection states is nothing short of alarming. Bob Barr, the
Republican Congressman from Georgia, for example, sponsored the antigay Defense of Marriage Act, saying: T
he flames of hedonism, the
flames of narcissism, the flames of self-centered morality are licking at the
very foundation of our society, the family unit.172 In the neighboring state
of Alabama, Roy Moore, then Chief Justice of the states supreme court,
openly advocated that the death penalty should be leveraged as a way to
keep children away from LGBT people, even their parents. In a lengthy
concurrence in a custody case involving a lesbian mother, Moore asserted
that
[t]he State carries the power of the sword, that is, the power to
prohibit [homosexual] conduct with physical penalties, such as
confinement and even execution. It must use that power to prevent the
subversion of children toward this lifestyle.173
Importantly, its not just in states in the Deep South where such antigay bias is spoken so freely and forcefully. The discussion occurs at a
national level as well. Indeed, the two organizations that lead the
t
raditional family movement on the national stagethe American
Family Association (AFA) and the Family Research Council (FRC)are
so virulent in their homophobia that they have both been deemed a
nti-gay
groups.174 In 2010, Bryan Fischer, AFA director of issue analysis for
171. See Maldonado, supra note 101, at 35052; see also Nan D. Hunter, Sexual Orientation and
the Paradox of Heightened Scrutiny, 102 MICH. L. REV. 1528, 1530 (2004) (asserting that in Lawrence
v. Texas, 539 U.S. 558 (2003), the Supreme Court
eradicated the last vestiges of state power to
criminalize private consensual adult sexual behavior solely on the basis of morality, without any
showing of harm either to persons or to legally protected institutions).
172. Remarks from Robert Barr, U.S. Representative, to the U.S. House of Representatives (July
12, 1996), available at http://www.eskimo.com/~bpentium/articles/marriage.html. That Barr was
married three times, paid for his second wifes abortion, failed to pay child support to the children of
his first two wives, and, while married to his third and present wife, was photographed licking
whipped cream off of strippers at his inaugural party matters not. See Bob Barr, WIKIPEDIA,
http://en.wikipedia.org/wiki/Bob_Barr#Controversies_over_Barr.27s_personal_conduct (last visited
Mar. 26, 2012). In his worldview, he is fit to be married and to be a parent based solely on his
presumed heterosexuality.
173. Ex parte H.H., 830 So.2d 21, 35 (Ala. 2002).
174. See Am. Family Assn, S. POVERTY LAW CTR., http://www.splcenter.org/get-informed/
intelligence-files/groups/american-family-association (last visited Mar. 26, 2012); Family Research

Page 32 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1619

government and public policy, claimed that


[h]omosexuality gave us
Adolph Hitler, and homosexuals in the military gave us the Brown Shirts,
the Nazi war machine and six million dead Jews.175 That same year, FRC
President Tony Perkins wrote: W
hile activists like to claim that
pedophilia is a completely distinct orientation from homosexuality,
evidence shows a disproportionate overlap between the two. . . . It is a
homosexual problem.176
Even in more comparatively moderate tones, government actors
consistently deny gays and lesbians the right to marry in reliance on
t
raditional family values, such as a preference for raising children within
a marriage, exposing children to dual-gender parenting roles, and
encouraging procreation. These arguments, as the next section explains,
are also driven by moral values about families. While opponents of gay
marriage might successfully employ those arguments about traditional
families to deny gays and lesbians the right to marry, those opponents
cannot deploy those arguments to deny children of gays and lesbians rights
equal to those enjoyed by their similarly situated peers.
The Weber Court explained this clearly in a now oft-quoted statement:
The status of illegitimacy has expressed through the ages
societys condemnation of irresponsible liaisons beyond the bonds
of marriage. But visiting this condemnation on the head of an infant
is illogical and unjust. Moreover, imposing disabilities on the
illegitimate child is contrary to the basic concept of our system that
legal burdens should bear some relationship to individual
responsibility or wrongdoing. Obviously, no child is responsible for
his birth and penalizing the illegitimate child is an ineffectualas
well as an unjustway of deterring the parent.177
The nonmarital status cases consistently held that children cannot be
punished based on moral disagreement with their parents conduct or
relationships.
Council, SOUTHERN POVERTY LAW CTR., http://www.splcenter.org/get-informed/intelligence-files/
family-research-council (last visited Mar. 26, 2012).
175. Am. Family Assn, S. POVERTY LAW CTR., http://www.splcenter.org/get-informed/intelligencefiles/groups/american-family-association.
176. Family Research Council, S. POVERTY LAW CTR., http://www.splcenter.org/get-informed/
intelligence-files/family-research-council (last visited Mar. 26, 2012).
177. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972).

Page 33 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1620

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

3. Children of Same-Sex Parents Suffer Concrete Economic Injuries


The children of same-sex parents suffer concrete economic (and noneconomic) losses. Persistent themes in the nonmarital status cases are that
children should be protected and our basic system of benefits and property
rights is designed to afford basic government safety nets to children when
necessary, like in the event of family transitions or crisis.178 The Levy
Court asked a series of questions that went directly to this concern in the
childrens claim for wrongful death recovery: [
w]hen the childs claim of
damage for loss of his mother is in issue, why, in terms of equal
protection, should the tortfeasors go free merely because the child is
illegitimate? Why should the illegitimate child be denied rights merely
because of his birth out of wedlock?179 The court also inquired that if a
nonmarital child is
subject to all the responsibilities of a citizen . . . [h]ow
under our constitutional regime can he be denied correlative rights which
other citizens enjoy?180 Weber also raised such concerns about the
economic interest of children seeking workers compensation proceeds
after the death of their father, noting that
[a]n unacknowledged
illegitimate child may suffer as much from the loss of a parent as a child
born within wedlock or an illegitimate later acknowledged.181
Similarly, in New Jersey Welfare Rights Organization v. Cahill,182 the
Supreme Court turned to the economic injury to children as its justification
for applying heightened review. New Jerseys Ass
istance to the Families
of the Working Poor program limited benefits to households comprised
of opposite-sex married couples with l
egitimate children.183 The court
found the law unconstitutional, because the benefits under the welfare
program were as i
ndispensable to the health and well-being of
illegitimate children as to those who are legitimate.184 The very notion
that some children are worthy of economic safety nets and others are not
because of their status as children of
immoral unmarried parents struck
178. See generally id.; New Jersey Welfare Rights 411 U.S. 619 (1973).
179. Levy v. Louisiana, 391 U.S. 68, 71 (1968).
180. Id.
181. Weber, 406 U.S. at 169.
182. 411 U.S. 619 (1973).
183. 1971 N.J. LAWS 1008 (repealed 1977) provided that the household must be
composed of
two adults of the opposite sex ceremonially married to each other who have at least one minor child
. . . of both, the natural child of one and adopted by the other, or a child adopted by both . . . .
184. Cahill, 411 U.S. at 619.

Page 34 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1621

at the heart of prohibited disparate treatment under the equal protection of


the laws.185
As Section II detailed, children of same-sex parents in no
-protection
states are denied access to a host of state (and federal) benefits.186 The
benefits that children of same-sex parents are denied places them at a
social and economic disadvantage in relation to their opposite-sex
parented peers and exposes them to unwarranted social and economic
hardship.
In conclusion, children of same-sex parents are in a similar position to
that of children of opposite-sex unmarried parents at the beginning of the
civil rights movementthey exercise no control over their parents
conduct, yet suffer concrete economic injuries because of moral objections
to their parents relationships. Children of same-sex parents are identical
to, or are a subset of, nonmarital status children, and their disparate
treatment warrants intermediate scrutiny.187
The remaining sections of the Article explore the potential state
justifications put forth to defend government classifications that
discriminate against children of unmarried same-sex parents, and offers a
legal mechanism that states may adopt to avoid the disparate treatment of
children of unmarried same-sex parents.
IV. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS TO
P
RESERVE MORAL VALUES
As explained in the introduction to this Article, there has yet to be an
equal protection challenge brought by a child of same-sex parents denied
government benefits enjoyed by children of opposite-sex parents;
therefore, one can only speculate about the justifications that no
protection states might invoke. However, it is possible to glean from both
the same-sex marriage litigation to date and the historical justifications
185. See Nolan, supra note 119, at 25 (
Clearly, the result of these cases on behalf of children
born to unwed parents has been the transformation of law and policy regarding legitimacy and
illegitimacy as to economic rights, nationally. That is, the cases set a floor, which all states are
constitutionally bound to follow in regard to these children.); see also Pickett v. Brown, 462 U.S. 1, 8
(1983) (
[A] state may not invidiously discriminate against illegitimate children by denying them
substantial benefits accorded children generally . . . .) (quoting Gomez v. Perez, 409 U.S. 535, 538
(1973)).
186. See supra Part II.
187. It is important to note that a court applying intermediate scrutiny to laws affecting children of
same-sex parents would not be creating a new suspect classification, but merely acting consistently
with cases in which courts applied intermediate scrutiny to laws affecting nonmarital children, because
children of same-sex parents in
no-protection states are a subset of nonmarital children.

Page 35 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1622

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

raised in the nonmarital status cases the types of arguments that may be
advanced. In the legal battles over same-sex marriage and gay adoption,188
the most frequent arguments deployed are based in traditional notions of
family life, including several variations on the theme that child rearing is
optimal when a man and a woman are present.189 Whatever the rationales
may be, the denial of government benefits to children of same-sex parents
will be difficult to justify as s
ubstantially related to a sufficiently
important governmental interest.190
A. Preserving Family Values Arguments
Family values arguments fall roughly into the following three
categories:
First, encouraging children be born within marriage because children
raised by married parents are preferable to children raised by unmarried
parents. This rationale focuses on encouraging the rearing of a biological
child within a marriage, as opposed to outside of it.191 States argue that
they are justified in encouraging marriage for opposite-sex couples who
have relationships that result in children because it is preferable to having
children raised by unmarried parents.192
Second, encouraging children be born within marriage because of the
unique ability of opposite-sex couples to a
ccidentally have children. A
variation on the first argument: states are justified in encouraging
188. This Article turns to these arguments only in an attempt to anticipate what a state may argue
as justifications for denying a child of same-sex parents any of the previously discussed government
benefits.
189. For a general overview of these arguments, see Carlos A. Ball, The Blurring of the Lines:
Children and Bans on Interracial Unions and Same-Sex Marriages, 76 FORDHAM L. REV. 2733
(2008). For academic arguments supporting these government rationales, see Maggie Gallagher, What
Is Marriage For? The Public Purposes of Marriage Law, 62 LA. L. REV. 773, 77374, 77980, 790
91 (2002); Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex Marriage in Light of
State Interests in Marital Procreation, 24 HARV. J.L. & PUB. POLY 771, 79799 (2001); Maggie
Gallagher & Joshua K. Baker, Do Moms and Dads Matter? Evidence from the Social Sciences on
Family Structure and the Best Interests of the Child, 4 U. MD. L.J. RACE, RELIGION, GENDER & CLASS
161, 172 (2004). But see Lewis v. Harris, 908 A.2d 196, 217 (N.J. 2006) (
The State does not argue
that limiting marriage to the union of a man and a woman is needed to encourage procreation or to
create the optimal living environment for children.).
190. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985) (citing Miss. Univ. for
Women v. Hogan, 458 U.S. 718 (1982) and Craig v. Boren, 429 U.S. 190 (1976)); Parham v. Hughes,
441 U.S. 347 (1979) (applying intermediate scrutiny to the denial of a fathers claim for the wrongful
death of his child because the father had not legitimated the child where the government also has the
burden of proof under intermediate scrutiny).
191. See Morrison v. Sadler, 821 N.E.2d 15, 2327 (Ind. Ct. App. 2005); Hernandez v. Robles,
855 N.E.2d 1, 7 (N.Y. 2006); Andersen v. King Cnty., 138 P.3d 963, 982 (Wash. 2006).
192. Morrison, 821 N.E.2d at 25; Hernandez, 855 N.E.2d at 7; Andersen, 138 P.3d at 982.

Page 36 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1623

opposite-sex marriage because these couples sexual relations can lead to


pregnancy accidentally, something that cannot happen in same-sex
relations.193 The unique heterosexual ability to have children accidentally
creates a state incentive to encourage and promote stability in marriage for
these children.194 In Hernandez v. Robles,195 the same-sex marriage ban
challenge in New York, the states highest court clarified this point:
The
Legislature could find that this rationale for marriage does not apply with
comparable force to same-sex couples. These couples can become parents
by adoption, or by artificial insemination or other technological marvels,
but they do not become parents as a result of accident or impulse.196 The
court theorized that this potential accident or impulse on the part of
opposite-sex couples creates a greater danger that children will be raised in
uns
table homes than with same-sex couples.197 It is important to note
that New York now allows same-sex marriage; several no
-protection
states, however, continue to maintain this
accidental procreation
argument to deny same-sex couples the right to marry.198
Third, encouraging children be raised in dual-gender households with a
mom and a dad. Another potential government rationale that may be
advanced is that there is a legitimate state interest in treating children of
same-sex couples differently than children in opposite-sex couples,
because c
hildren thrive in opposite-sex marriage environments.199 States
have a legitimate interest in encouraging the
optimal family structure of
a home with both a mother and father to provide gender role-modeling.
In Lofton v. Secretary of the Department of Children and Family
Services,200 a challenge to Floridas ban on homosexual adoption, the
Eleventh Circuit explained that the regulation was permissible under the
Equal Protection Clause because it was rationally related to the best
193. Hernandez, 855 N.E.2d at 7.
194. Id.
195. 855 N.E.2d 1 (N.Y. 2006).
196. Id.
197. See id. But see Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 963 (Mass. 2003)
(limiting marriage to opposite-sex couples was not related to ensuring that children are raised in an

optimal setting, because extending marriage to same-sex couples would offer a more stable family
structure for the children in those households); Baker v. State, 744 A.2d 864, 885 (Vt. 1999) (rejecting
the argument that Vermont public policy favored opposite-sex parents as
patently without substance
in light of statutes permitting same-sex adoption and offering legal protections in the event of
dissolution of same-sex relationships).
198. See generally Edward Stein, The Accidental Procreation Argument for Withholding Legal
Recognition for Same-Sex Relationships, 84 CHI.-KENT. L. REV. 403 (2009) (arguing that the rationale
for prohibiting same-sex marriage is no stronger than the traditional justification of procreation).
199. Andersen, 138 P.3d at 983.
200. 358 F.3d 804 (11th Cir. 2004).

Page 37 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1624

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

interests of Floridas adopted children to place them in homes with


married heterosexual parents.201 Florida, the court found, had a legitimate
interest in encouraging the opt
imal family structure of a home with both
a mother and father, because of the v
ital role that dual-gender parenting
plays in shaping sexual and gender identity and in providing heterosexual
role modeling.202 The court dismissed the plaintiffs argument that
Floridas role-modeling rationale was not rationally related to its
objectives of dual-gender parenting, given that the state allowed single
heterosexual persons to adopt.203 The Court explained that, unlike gays
and lesbians, heterosexual singles have a greater probability of eventually
establishing a stable dual-gendered household.204
The moral values justifications will suffer the same constitutional faults
as similar moral-values arguments raised and rejected forty years ago in
the nonmarital status cases.205 Each rationale has a common theme with
the now unconstitutional nonmarital status classifications rooted in the
pr
eservation of the traditional family arguments. From the standpoint of
the child, the government cannot demonstrate how these justifications are
substantially related to sufficiently important governmental interests of
providing financial stability to children.206
1. The Lack of a Nexus to Financial Stability
State actors will be unable to offer a nexus to government action
denying children of same-sex parents their non-biological parents
workers compensation benefits, social security, or other safety nets. In
striking down the workers compensation provision in Weber v. Aetna
Casualty & Surety Co.,207 the Supreme Court explained that the decedent
father had as much affinity for his nonmarital children as he did for his
four children born within his marriage, and that all of his children had
lived with him and were e
qually dependent upon him for maintenance
and support.208 The Weber Court made it clear that placing the states
moral condemnation of the childs parents onthe head of an infant is
201. Id. at 81920.
202. Id. at 818. For further background on these arguments, see Ball, supra note 189, at 275256.
203. Lofton, 358 F.3d at 82021.
204. Id. at 822.
205. See supra Part I.B.
206. See Silverman, supra note 2, at 435 (
A child-centered analysis reverses the emphasis, but
also eliminates some of the arguments leveled against the parents which have been used to sustain the
denial of same-sex couples to marry.).
207. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 171 (1972).
208. Id. at 70.

Page 38 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1625

illogical and unjust. . . . Obviously, no child is responsible for his birth and
penalizing the illegitimate child is an ineffectualas well as an unjust
way of deterring the parent.209
An example in the context of a child of same-sex parents may be
instructive. Assume that Linda is the child of a lesbian couple, Mary and
Jan. They live in a
no-protection state. Together they planned for and
followed through on the necessary steps via alternative insemination to
have Linda. Mary is the biological mom, Jan is the non-biological mom.
The sperm donors parental rights were terminated. Mary and Jan have
both been equal participants in raising Linda. Jan, a high school principal,
contributes $60,000 a year in income to the household. Mary works parttime in a bookstore and contributes $15,000 a year in income. When Linda
is 15 years old, Jan is killed by a drunk driver.
In a no
-protection state, Linda would not be able to recover for
economic losses to the household and for her emotional trauma from the
tortious death of Jan because she is not legally recognized as Jans child.
Wrongful death claims allow for recovery of the pecuniary loss to a person
for the negligent, reckless, or intentional death of a loved one.210
Increasingly, states permit plaintiffs to recover for emotional or
psychological losses as well.211 Eligibility to sue varies by state, however,
and most limit wrongful death recovery to the deceaseds spouse, children,
parents, or siblings.212 The damageboth economic and emotionalis
clearly present in this situation after a fifteen year functional parent-child
relationship. To deny the child recovery based on the states moral
objection to same-sex relationships is contrary to the basic principles of
wrongful death actions and tort lawthat the dependent child is placed in
the position she would have been in had the tortious act never occurred.
Instead, the status quo assures that Linda (and Mary) will suffer major
economic and emotional hardship. Also, the failure to recognize Lindas
claim grants the negligent defendant a windfall. This result is also contrary
to basic equal protection principlesignoring the fifteen-year parent-child
relationship because of moral disapproval and leaving the child without
financial compensation for her losses (both economic and emotional)
209. Id. at 175.
210. See generally supra note 81.
211. See, e.g., Green v. Bittner, 424 A.2d 210, 215 (N.J. 1980).
212. These statutory limitations prevent not only members of same-sex families from seeking
recovery, but also members of many other family relationships that fail to conform to the traditional
nuclear family. See Culhane, supra note 81, at 94263.

Page 39 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1626

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

places the child of same-sex parents at a distinct disadvantage in relation


to his or her peers with opposite-sex parents.
A child like Linda would be the modern-day equivalent of the children
in Levy v. Louisiana, wherein the state of Louisiana denied the r
ight to
recover for the tortious death of a mother because the children were not
l
egitimate, insofar as
morals and general welfare . . . discourage[]
bringing children into the world out of wedlock.213 To deny Linda these
government resources designed to assist children in exactly these sorts of
situations does not relate to the objectives of wrongful death recovery. As
the Levy Court explained:
Legitimacy or illegitimacy of birth has no relation to the nature
of the wrong allegedly inflicted on the mother. These children,
though illegitimate, were dependent on her; she cared for them and
nurtured them; they were indeed hers in the biological and in the
spiritual sense; in her death they suffered wrong in the sense that
any dependent would.214
In the context of children with same-sex parents like Linda, the nonbiological same-sex parent nurtures and cares for the child and the child is
dependent upon the parent, just as any opposite-sex family configuration,
whether rooted in a biological connection or not. To deny Linda the
wrongful death recovery because of moral disagreement with the fact that
she has two mothers is to do so on the basis of invidious animus.
The insufficiency of these family values arguments has been
recognized in state supreme court decisions that have extended marriage
equality to gays and lesbians. In 2009, the Iowa Supreme Court struck
down its state prohibition on same-sex marriage in reliance, in part, on
how marriage bans unjustifiably impose economic and psychological
injuries on children within same-sex unions. After deciding that the level
of scrutiny applicable to gays and lesbians would be intermediate scrutiny,
the court concluded that the state justifications for excluding gays and
lesbians from marrying were not substantially related to the objective that
children be raised in an op
timal environment with a mother and a father.
The court rejected this state objective as both under and overinclusive:
If the statute was truly about the best interest of children, some
benefit to children derived from the ban on same-sex civil marriages
213. Levy v. Louisiana, 391 U.S. 68, 70 (1968) (quoting Levy v. State, 192 So.2d 193, 195 (La.
Ct. App. 1966)).
214. Id. at 72.

Page 40 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1627

would be observable. Yet, the germane analysis does not show how
the best interests of children of gay and lesbian parents, who are
denied an environment supported by the benefits of marriage under
the statute, are served by the ban.215
Similarly, in the landmark ruling in Goodridge v. Department of Public
Health,216 the Supreme Court of Massachusetts found the states refusal to
grant marriage licenses to same-sex couples to violate the state
constitutions equal protection provision.217 The court rejected the states
justifications for prohibiting same-sex marriageprocreation and child
rearingunder the most minimal rational basis inquiry. First, the statute
failed to be rationally related to providing a f
avorable setting for
procreation because fertility and procreation are not prerequisites to
obtaining a marriage license.218 Second, limiting marriage to opposite-sex
couples failed to relate to the state justification of ensuring that children
are raised in the
optimal setting with one parent of each sex.219 The court
explained that the demographics of the American family make it difficult
to describe the average family and extending marriage to same-sex couples
would offer a more stable family structure for the children in their
households.220
No
-protection states fail to recognize the changing demographics of
the American family. Once again, these state actors are driven by moral
judgment and invidious animus and, at bottom, they seek to force citizens
to conform to particular behaviorsopposite-sex marriageand punish
children to achieve that objective. The rationales articulated, such as the
ne
ed for a child to be raised in a house with a married man and woman,
is merely another attempt by the state to ensure the l
egitimacy of
children.221 As Professor Solangel Maldonado observes, the
marriage/procreation arguments used to deny same-sex couples the right to
marry s
erve to reinforce societal disapproval of nonmarital families and
children.222 This has already been repeatedly struck down as
impermissible, however. A state m
ay not invidiously discriminate against
215. Varnum v. Brien, 763 N.W.2d 862, 901 (Iowa 2009); see also Perry v. Schwarzenegger, 704
F. Supp. 2d 921, 97273, 9991001 (N.D. Cal. 2010).
216. 798 N.E.2d 941 (Mass. 2003).
217. Id. at 948, 973 (holding that the state could not deny the
protections, benefits, and
obligations conferred by civil marriage to two individuals of the same sex who wish to marry).
218. Id. at 961.
219. Id. at 962.
220. Id. at 963.
221. See Smith, supra note 20, at 322.
222. See Maldonado, supra note 101, at 386.

Page 41 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1628

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

illegitimate children by denying them substantial benefits accorded


children generally.223 As with children of married opposite-sex parents,
children of same-sex parents in no
-protection states are entitled to be
placed on equal footing with marital children.
Further, although beyond the scope of this Article, the rationale that
encourages raising children in dua
l-gendered households based on
impermissible moral judgment may violate equal protection doctrine that
prohibits gender discrimination. Gender stereotypes about the roles of men
and women in parenting responsibilities are also impermissible rationales
to deny a child of same-sex parents the equal benefits enjoyed by children
of opposite-sex parents.224
The equal protection jurisprudence is clear that the Constitution does
not permit the government to punish innocent children to express its moral
condemnation of their parents relationships. Such classification r
eflect[s]
deep-seated prejudice rather than legislative rationality in pursuit of some
legislative objective.225 The t
raditional family preservation arguments
of encouraging children be raised by a man and a woman are unrelated to
the very purpose of the state benefits and provisions designed to protect
children.
V. ADMINISTRATIVE EFFICIENCY AND THE INSURMOUNTABLE BARRIER
DOCTRINE
In addition to invoking moral judgments to prevent children of samesex couples from recovering government benefits from their nonbiological parents, states may allege that such denials are necessary to
ensure the efficient administration of government benefits and prevent
spurious claims. The administrative efficiency and prevention of spurious
claims justifications are likely to fail for two significant reasons.
First, it is morally and legally unacceptable for the government to enact
blanket exclusions of nonmarital children to basic government safety
nets.226 As it stands now, as explained in Part II.A, children of same sex
223. See Gomez v. Perez, 409 U.S. 535, 538 (1973).
224. See, e.g., Miss. Univ. for Women v. Hogan, 458 U.S. 718, 72425 (1982); see also United
States v. Virginia, 518 U.S. 515, 54951 (1996) (discussing gender stereotyping in military
academies); Frontiero v. Richardson, 411 U.S. 677 (1973) (discussing gender stereotyping of women
members of the U.S. Armed Service and the dependency, or non-dependency, of their husbands).
225. Plyler v. Doe, 457 U.S. 202, at 216 n.14.
226. See Trimble v. Gordon, 430 U.S. 762, 772 (1977) (
Difficulties of proving paternity in some
situations do not justify the total statutory disinheritance of illegitimate children whose fathers die
intestate.).

Page 42 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1629

parents in n
o-protection states face an insurmountable barrierthey are
completely locked out of access to these benefits. N
o-protection states
fail to provide any legal channels for the parents or the child to establish a
legal relationship with each other. This legal barricade prevents children
from accessing government benefits and allows the state to permanently
disenfranchise them without ever discovering whether the speculative
parade of horribles will actually occur when it comes to proving legal
parentage. Second, by virtue of the ways in which same-sex couples (who
are the focus of this Article) become parents, it may, in fact, be easier to
weed out fraudulent cases than in traditional opposite-sex paternity cases.
This section concludes with potential options that states may turn to in
removing the insurmountable barrier.
A. The Insurmountable Barrier Doctrine
Children of same-sex parents face an insurmountable barrier to
accessing basic government benefits, a barrier erected by no
-protection
states. It is impossible for the non-biological same-sex parent to establish a
legal relationship to the child: same-sex couples cannot marry; the samesex non-biological parent is not related by blood; gays and lesbians cannot
adopt (as couples); and there is no alternative legal mechanism for a samesex non-biological parent to voluntarily acknowledge or demonstrate an
intent to parent their same-sex partners biological child. It is also
impossible for the child to obtain a legal relationship to the non-biological
same-sex parent. The government cannot c
reate an insurmountable
barrier to the children of same-sex parents to government benefits and
property rights.227
A central tenet of the nonmarital status cases is that the difficulty in
proving paternity does not justify blanket exclusions to nonmarital
children. In Labine v. Vincent,228 despite the joint acknowledgment by the
unmarried mother and father that Rita Vincent was their natural child, the
Supreme Court held that it was insufficient to give Rita a legal right to her
fathers inheritance.229 In explaining its position, the Court argued that
Rita Vincents equal protection argument was misplaced because, unlike
Levy, this was not a situation in which the state c
reated an
227. See generally Labine v. Vincent, 401 U.S. at 539 (holding that because no insurmountable
barrier prevented the child from sharing the estate Louisiana did not bar the child from recovery)
(citing Levy v. Louisiana, 391 U.S. 68 (1968)).
228. 401 U.S. 532 (1971).
229. Id. at 533, 53940.

Page 43 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1630

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

insurmountable barrier to the illegitimate child because the father could


have legitimated the child a number of ways, including by marrying the
mother, formulating a will, or stating his desire to legitimate his daughter
in an acknowledgment.230 Although Labine has been criticized for its
lackluster equal protection analysis, it did indicate that a baseline exists
below which states cannot tread: states cannot create an insurmountable
barrier to a nonmarital child to establish a legal relationship to the
father.231
In Trimble v. Gordon,232 the Supreme Court clarified the
i
nsurmountable (or impenetrable) barrier doctrine. In Trimble, Deta
Mona Trimble challenged an Illinois statute that permitted marital children
to inherit by intestacy from both their mothers and fathers, but limited the
inheritance of nonmarital children only to their mothers.233 Deta Mona
lived with her unmarried opposite-sex parents.234 Her father openly
acknowledged her as his child and, prior to his death, he obtained a court
order of paternity.235 Nevertheless, the Illinois Probate Court upheld the
constitutionality of the Illinois statute and denied Deta Mona inheritance
of his estate.236
In reliance on Labine, the Illinois Supreme Court justified Deta Monas
exclusion from inheritance because nonmarital children were not subjected
to an insurmountable barrier preventing them from sharing in their fathers
estatesfathers, including Detas father, could leave wills to ensure their
childrens inheritance.
The Supreme Court rejected the states preservation of family
relationships arguments and the states articulated interest in the efficient
method of property distribution. Clarifying its position on the
insurmountable barrier doctrine from Labine, the Court held that Illinois
interest in the difficulty of proving paternity and the risk of spurious
230. See supra notes 130, 136.
231. See Nolan, supra note 119, at 13; Richard L. Brown, Disinheriting the Legal Orphan:
Inheritance Rights of Children After Termination of Parental Rights, 70 MO. L. REV. 125, 163 (2005)
(
[S]tatutes that impose blanket disadvantages on illegitimate children, without providing some
reasonable mechanism to avoid those disadvantages, almost certainly do not bear the substantial
relationship to an important governmental interest test required under intermediate scrutiny.).
232. 430 U.S. 762 (1977).
233. Id. at 764.
234. Id.
235. Id.
236. Id. at 76465.

Page 44 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1631

claims did not support the complete prohibition on inheritance from the
intestate father.237
The Supreme Court recognized that even when a constitutional
violation is invoked, the Court must tread lightly to accord substantial
deference to a states statutory scheme. States, however, must demonstrate
a nexus between the law and its stated objectives. The Court said,
[
P]roblems [of proof] are not to be lightly brushed aside, but neither can
they be made into an impenetrable barrier that works to shield otherwise
invidious discrimination.238 Illinois gave inadequate consideration to the
connection between the statute and the goals of accuracy and efficiency of
the disposition of property because a middle ground existed between
complete exclusion and a case-by-case determination.239 According to the
Trimble Court, the inheritance rights of an entire class of nonmarital
children could be recognized without threatening the accurate and efficient
settlement of estates.240 In fact, Deta Mona Trimble was one of those
children.241 By excluding an entire category of easily identifiable
nonmarital children, the statute failed to be c
arefully tuned to alternative
considerations and engaged in broad discrimination between marital and
nonmarital children.242 As such, the statute extended beyond its asserted
purposes.
As for Illinois interpretation of Labine that the statute was justifiable
because there was no insurmountable barrierthe father could have
executed a willthe Court clarified its position: Tr
aditional equal
protection analysis asks whether this statutory differentiation on the basis
of illegitimacy is justified by the promotion of recognized state
objectives, and
[i]f the law cannot be sustained on this analysis, it is not
clear how it can be saved by the absence of an insurmountable barrier to
inheritance under other and hypothetical circumstances.243 The Court also
made it clear that by reframing the focus on other means to inheritance, the
analysis lost sight of the essential question regarding the constitutionality
of the discrimination against nonmarital children in inheritance law.244 If
237. See id. at 770 (stating that the Illinois court justified the disparate treatment of nonmarital
children because
proof of a lineal relationship is more readily ascertainable when dealing with
maternal ancestors).
238. Id. at 771 (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972)).
239. Id.
240. Id. at 77172.
241. Id. at 774.
242. Id. at 772 (internal quotation marks omitted).
243. Id. at 77374.
244. Id. at 774.

Page 45 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1632

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

the father had executed a will, the case would no longer involve intestacy
law.245 The state attempted to argue that the absence of an insurmountable
barrier alone would not serve as a defense or justification to treat marital
and nonmarital children differently, particularly if the other ways to obtain
the right or benefit advanced are through other legal schemes not at issue
in the case.
The Trimble Court refocused the analysis of the disparate treatment of
nonmarital children on whether such treatment is justified by state
objectives. The presence or absence of an impenetrable barrier, however,
is not the ultimate question. Consistent with the foundation set by Labine,
the presence of an insurmountable barrier may serve as proof of a states
invidious animus if it includes categories of children denied access to
government benefits when they are easily identifiable and pose no proof
problems.246
In no
-protection states, complete exclusion continues to exist for
children of same-sex parents. All children of same-sex parents are
prohibited from establishing a legal relationship with their non-biological
parent and are denied government benefits even though, for a broad
category of children, the relationship between them and their nonbiological parent can be easily established.247 For example, in Boseman,
there was no proof problem in determining that Johns non-biological
mother sought to be his legal parent.248 There were ample indicia of her
intent to parent John, including a court order establishing legal
parentage.249
Consistent with the nonmarital status cases, the concerns of proof
problems with children of same-sex parents establishing a legal
relationship to the non-biological same-sex parent does not justify an
insurmountable barrier to shield invidious discrimination. To avoid the
constitutional infringement of children with same-sex parents, the first
step is for states to remove the insurmountable barrier by creating channels
for establishing legal parentage. As explained in Trimble, it is not the role
of federal courts to dictate the exact legal channel that states adopt to
remove the insurmountable barrier. In that vein, the next section will offer
245. Id. at 773.
246. Lalli v. Lalli, 439 U.S. 259, 26668 (1978) (holding that there may be some distinctions in
terms of assessing who may recover but blanket prohibitions not justifiable).
247. The Weber Court reiterated the underlying concern stating,
[t]he burdens of illegitimacy,
already weighty, become doubly so when neither parent nor child can legally lighten them. See
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 171 (1972).
248. Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010).
249. Id. at 497.

Page 46 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1633

some options drawn from well-known family law scholars and from
practices in other states.
B. The State Options to Remove the Insurmountable Barrier
To avoid constitutional infringement of the equal protection rights of
children with same-sex parents, no
-protection states must avoid the
blanket exclusion to the state-level recovery of benefits by creating a legal
framework that permits the creation of a legal relationship between a child
and his non-biological same-sex parent.
The point of this Article is not to advocate for a particular avenue, but
rather to argue that the failure to offer any legal mechanism for the
creation of a legal relationship between a child and its non-biological
same-sex parent is an equal protection violation. The legal channels states
select are within each states purview based on its policies, practices, and
existing procedures dealing with children and parentage.250 Fortunately, as
a result of same-sex rights developed in other states and legal scholarship,
there are a number of models to which states may look for guidance. This
Article will briefly touch upon some existing legal channels, including
voluntary acknowledgment of parentage, second-parent adoption, and
marriage/civil unions. None of these models are free from future litigation
challenges, but raising these options at least opens a dialogue that works
towards equal access for children of same-sex parents.
1. Voluntary Acknowledgment of Paternity/Parentage
As explained earlier in the Article, every state allows unmarried
opposite-sex couples to establish a legal parent-child relationship through
a voluntary acknowledgment of paternity (VAP), a simple mechanism
available at the hospital immediately before or after birth of the child.
Once an unmarried couple signs an affidavit that voluntarily acknowledges
that the male signing the form is the father of the child, he is assigned all
rights and responsibilities as they relate to the child.251 The VAP
Voluntary Acknowledgment of Parentageprocess could be extended to
same-sex couples.252
250. See Trimble, 430 U.S. at 771 (
The judicial task here is the difficult one of vindicating
constitutional rights without interfering unduly with the States primary responsibility in this area.);
KRAUSE, supra note 1, at 42. (noting conflict of laws concerns).
251. Julia Saladino, supra note 48, at 3; Harris, supra note 51, at 478 (2012).
252. Harris, supra note 51, at 487.

Page 47 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1634

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

This option may be the least intrusive and least costly to states, parents,
and children. Hospitals in all states already have procedures in place
whereby willful parties can establish parentage responsibilities and rights
immediately before or after birth. For a non-biological, same-sex parent,
completing such a form requires no lawyers, no courts, no costonly her
presence and the consent of the birth parent. The VAP is also recognized
from state-to-state as granting legal parentage.253 Further, in more
conservative jurisdictions, this pathway to parentage would allow states to
compel economic responsibility for children without e
ndorsing the
relationship of the same-sex couple.
Still, there are downsides to voluntary acknowledgment of parentage as
a single avenue, two of which will be mentioned here. First, the window in
which a non-biological parent may establish parentage status is extremely
narrow. What if a non-biological parent clearly demonstrated an intent to
parent before birth, such as cases when both parties consented to and
participated in the creation of the child through alternative insemination
and provided pre-natal care, yet split up with the biological parent before
the child is actually born? Should the child be denied legal access to the
intended co-parent? Second, voluntary acknowledgment of parentage may
fail to offer parity for gay men. Situations that involve a surrogate mother
and two gay men, one the sperm donor and the other non-biologically
related, for example, may be complicated by the terms of, or legal issues
related to, surrogacy.
2. Other Forms of Parental Acknowledgment
a. Intent to Parent Statutes
In 2009, the District of Columbia became the first place in the United
States where parentage of a non-biological, same-sex parent can be
established at insemination.254 The Domestic Partnership Judicial
Determination of Parentage Act of 2009 pr
ovides that when a woman
bears a child conceived by artificial insemination, and her spouse or
unmarried partner consents in writing to the insemination, the consenting
253. Saladino, supra note 48, at 2, 3; Harris, supra note 51, at 475.
254. Nancy D. Polikoff, Landmark D.C. law grants parental status to two mothers, BEYOND
(STRAIGHT AND GAY) MARRIAGE (July 22, 2009), http://beyondstraightandgaymarriage.blogspot.com/
2009/07/landmark-dc-law-grants-parental-status.html.

Page 48 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1635

spouse or partner is a legal parent.255 Although husbands have always


been the presumed parent of a child conceived through artificial
insemination, this law extends that right regardless of marital status or
gender of the non-biological parent. Unfortunately, the law seems only to
apply to female same-sex couples, as surrogacy remains illegal in the
District.256 New Mexico was the first state to create a similar
i
nsemination-intent pathway to parentage that extends to same-sex
couples, not just heterosexual, married men who always were presumed to
be a parent.257 The benefits of such statutes revolve primarily around
expediencyfor the state, the non-biological parent and the childand
the allowance for the establishment of parentage before birth.258 It remains
unclear, however, how such statutes could be best applied to gay men
involved in surrogacy births.259 To get around such limitations, states
might consider drafting statutes less dependent on particular methods of
reproductive assistance and with greater emphasis on defining a more
inclusive parental presumption.260
b. De facto Parental Status
At least ten states, including Washington, California, Maine,
Massachusetts, New Jersey, and Wisconsin, allow a person without a
biological or otherwise legal relationship to a child to petition for
de
facto parentage status on the basis of a relationship between the adult and
child.261 The criteria for establishing defacto status vary by state, and
some jurisdictions are inclusive.262 What is nearly universal in court
actions related to assignments of defacto parentage status is that the
non-biological parent must spend a significant amount of time parenting
255. Press Release, Natl Ctr. for Lesbian Rights, New Law Protects Children Born to Same-Sex
Parents in the District of Columbia (July 22, 2010), http://www.nclrights.org/site/PageServer?page
name=press_DCparentingbill072209.
256. See Polikoff, supra note 254.
257. See Courtney Joslin & Shannon Minter, Assisted Reproduction, Excluding Surrogacy,
LESBIAN, GAY, BISEXUAL AND TRANSGENDER FAMILY LAW 3:3 (updated June 2012).
258. See Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood An
Opportunity for Gender-Neutrality, 1990 WIS. L. REV. 297 (1990).
259. Intent-to-parent statutes may create unintended consequences in other areas of the law. If
parenthood
begins at conception, so might life, and
life begins at conception is a fundamental
assertion of the anti-choice movement. Such issues are, however, beyond the scope of this Article.
260. See Graham, supra note 8, at 1034. Graham proposes model statute language as follows:
A
person who is living in a committed same-sex relationship when his or her partner gives birth to or
adopts a child shall be presumed to be a legal parent of the child. Id.
261. Sanja Zgonjanin, What Does it Take to Be A (Lesbian) Parent? On Intent and Genetics, 16
HASTINGS WOMENS L.J. 251, 25758 (2005).
262. Id. at 25658.

Page 49 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1636

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

the child before defacto parental status can be assigned. Benefits to d


e
facto avenues include the allowance of a longer window in which a coparent may seek parenting status and also their gender-neutral nature. Gay
men, lesbians, and heterosexual men and women would all have access to
this process. Further, d
e facto approaches c
reate parental status,
without necessitating adoption, for a person who does not plan for a
childs birth or adoption but comes into the childs life at a later date.263
The downsides here include the significant period of time during which
the child is left unprotected, in terms of her legal access to the intended
second parent, the extent to which this status covers all benefits identified
earlier, and the significant costs associated with any court proceeding,
which may erect a barrier for some parents without robust financial
means.264
3. Second-Parent Adoption
In sixteen states and Washington, D.C., a child born to one legal parent
may be adopted by another same-sex adult with the consent of the legal
parent.265 The second-parent adoption affords the second parent all of the
rights and responsibilities of legal parenthood. Second-parent adoptions
allow the non-biological parent of the child to become a legal parent
alongside a birth mother or birth father.266 Among the benefits of secondparent adoption is the reality that it protects a childs legal access to an
intended parent, whether or not the childs parents canor choose toget
married,
civil unioned, or legally pa
rtnered. Further, it is genderneutral in its approach, fully benefiting gay men and lesbians, along with
their unmarried opposite-sex counterparts.267 Still, second-parent
263. Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for
Children of Lesbian Couples in the Twenty-First Century, 5 STAN. J. C.R. & C.L. 201, 224 (2009).
264. Id.
265. NATL CTR. FOR LESBIAN RIGHTS, supra note 37.
266. See generally Patricia J. Falk, Second-Parent Adoption, 48 CLEV. ST. L. REV. 93 (2000);
Jason N.W. Plowman, When Second-Parent Adoption Is the Second-Best Option: The Case for
Legislative Reform as the Next Best Option for Same-Sex Couples in the Face of Continued Marriage
Inequality, 11 SCHOLAR 57, 63 (2008); Eleanor Michael, Approaching Same-Sex Marriage: How
Second Parent Adoption Cases Can Help Courts Achieve the Best Interests of the Same-Sex Family,
36 CONN. L. REV. 1439 (2004).
267. See, e.g., In re Jacob, 660 N.E. 2d 397, 405 (N.Y. 1995) (alluding to a possible claim on
behalf of children whose non-biological unmarried heterosexual parent and same-sex parents were
denied the right to adopt).

Page 50 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1637

adoptions are far from perfect as a single avenue toward parentage.268 As


Professor Nancy Polikoff powerfully explains:
[R]ecognition of a childs family should not depend upon the
familys access to court proceedings that require a lawyer and take
two precious and limited commoditiestime and money. The
nonbiological mother and her child also should not be legal
strangers during the inevitable period of time it takes to obtain an
adoption decree.269
4. Domestic Partnerships, Civil Unions and Marriage
One legal route a state may offer children (and their parents) in samesex families is access to formal domestic partnerships, civil unions, and
marriage. Nine states provide recognition to same-sex partners through
domestic partnerships laws or civil unions.270 Another seven states and the
District of Columbia allow same-sex couples to marry.271 In all of these
jurisdictions, same-sex couples have rights and legal protections parallel to
those of opposite-sex married couples, and the same-sex spouse should
receive the parentage presumption that a child born into the union is the
child of both parents.272 Still, marriage or its legal equivalent is not a
panacea.
Many same-sex parents may choose not to get married, un
ioned, or
legally pa
rtnered. This certainly holds true for many opposite-sex
couples who have children together. In this way, formally recognizing
same-sex couplesthrough domestic partnerships, civil unions or
marriagemay still leave some children of gay and lesbian parents
vulnerable. States should seek to ensure that children of unmarried samesex couples experience treatment equal to that of married same-sex and
268. See Julie Shapiro, A Lesbian-Centered Critique of Second-Parent Adoptions, 14 BERKELEY
WOMENS L.J. 17 (1999).
269. See Polikoff, supra note 263, at 267.
270. See Interstate Relationship Recognition (May 27, 2011), HUMAN RIGHTS CAMPAIGN,
http://www.hrc.org/files/assets/resources/Interstate_Relationships_Recognition_Map(1).pdf.
271. Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and Washington
State. Same-sex marriage in two states, Iowa and Massachusetts, is allowed based on court decisions;
same-sex marriage in the other six jurisdictions is allowed pursuant to legislative action. See generally
Issue: Marriage, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/issues/marriage (last visited Mar. 26,
2012).
272. In civil union states, these marriage-like institutions offer state-level rights and benefits that
are the equivalent to the rights and benefits of marriage and they also include the extension of the
rights and benefits to children within these relationships. See Polikoff, supra note 263, at 214. There
are some exceptions for states that do not recognize surrogacy. Id. at 214 n.46.

Page 51 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1638

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

opposite-sex couples.273 Presumably, the prohibition on treating


nonmarital children differently than marital children should apply in this
context, although this area of the law in the context of same-sex parents
has yet to be explored. In same-sex marriage states, second-parent
adoptions and other avenues to establish parentage need to remain
available.
5. Legal Channels for Children
The law provides methods for children with opposite-sex parents to
seek the establishment of paternity on their own behalf. Importantly,
paternity issues for children with opposite-sex parents are not resolved on
the sole criteria of a genetic relationship between the child and father.
Indeed, the law affords a much broader interpretation of parenthood within
paternity issues.274
States should consider the development of similar pathways for
children of same-sex couples to establish a parentage connection. The
reality that same-sex couples cannot have children
accidentally and must
plan thoroughly to do so lends itself well to the creation of a legal test to
demonstrate a non-biological parents original consent and intent for
which he or she should be legally responsible in order to protect the best
interests of the child. There has been very little discussion of a parallel
system for children of same-sex parents because the first generation of
cases has focused simply on getting rights for the parents and their
children. This will certainly be a necessary remedy as the issues and cases
evolve.
6. Preventing Spurious Claims
In Hernandez v. Robles, the same-sex marriage ban challenge in New
York, the court opted to exclude same-sex couples because, in part, unlike
273. See generally Mark Glover, Evidentiary Privileges for Cohabitating Parents: Protecting
Children Inside and Outside of Marriage, 70 LA. L. REV. 751, 777 (2010); Courtney G. Joslin,
Protecting Children(?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. CAL. L. REV.
1177 (2010) (discussing how marriage only rules pertaining to assisted reproductive technology hurt
the children of same-sex parents).
274. See Part II.A; see also Jennifer Rosato, supra note 54, at 75 (
Courts have even ignored
accurate positive results of a paternity test. For example, courts have continued to apply the
presumption in situations where a husband finds out, through DNA testing, that the child he has been
raising with his wife is not his biological child.); Melanie B. Jacobs, supra note 62, at 375 (
The
marital presumption and estoppel have been successfully used to maintain the father-child relationship
in the absence of a biological tie because courts know that children rely on established parent-child
relationships.).

Page 52 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1639

opposite-sex couples, they cannot conceive a


ccidentally.275 The court
essentially treated the advanced planning of gays and lesbians as a
negative quality of their parenting and child-rearing capabilities. In the
context of establishing parental connections between children and their
non-biological parents, however, such planning is anything but a negative.
Indeed, the fact that gays and lesbians must be purposefulvery
purposefulabout how and when they bring children into the world
severely undercuts the dangers of spurious claims. Couples like Melissa
Jarrell and Julia Boseman (Johns same-sex parents), and Eva Kadray and
Camille Caracappa (Nicolajs same-sex parents) went through a number of
detailed steps and extensive planning to seek recognition. Even if the
couple splits up, as did Jarrell and Boseman, the steps taken by the gay or
lesbian couple to become parents offer sufficient indicia to assess whether
the non-biological parent assumed parenting rights and responsibilities of
a child. Indeed, the actions of the non-biological parent and the birth
mother or birth father leading up to, and beyond, conception and birth
provide clear indications of both parties intent and consent, and a clear
basis for a child to possess expectations of both of his or her parents.
This is not to say that there are not, and will not be, times when it is
less than clear whether an individual from a same-sex relationship
intended to parent. In Elisa B. v. Superior Court,276 for example, the
district attorney sought to establish parentage between children and a nonbiological parent after the birth mother applied for public assistance.277
The court concluded that Elisa, the non-biological parent, bo
th received
the children into her home and held them out as her natural children; had
she been a man, this would have made her a presumed father.278 In
instances such as this, when a non-biological parent is rejecting his or her
standing as a parent, sufficient indicia of intent to parentor the complete
absence of themcan make ultimate determinations of parentage more
clear. Again, when gays and lesbians plan, as they must, to bring a child
into the world, a record of that planning often will be created.
In sum, this Article asserts that government-sponsored discrimination
against children of same-sex parents violates the childrens equal
protection of the laws because neither government moral preservation
arguments nor administrative efficiency arguments are s
ubstantially
related to a sufficiently important government interest as required by
275.
276.
277.
278.

358 F.3d 804 (11th Cir. 2004).


117 P.3d 660 (Cal. 2005).
See Polikoff, supra note 263, at 21819.
Id. at 218.

Page 53 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

1640

WASHINGTON UNIVERSITY LAW REVIEW

[VOL. 90:1589

intermediate scrutiny.279 Further, although beyond the scope of the focus


of this Article, denying children basic safety nets because of their parents
(unmarried) same-sex relationship is likely to fail rational basis as well.
The exclusion of children of same-sex parents in
no-protection states
offers a significant body of evidence to draw upon in demonstrating that
the denials are driven by invidious animus.280
VI. CONCLUSION
In 1944, the Virginia Supreme Court, in Brown v. Brown,281 upheld a
lower court denial of Jacqueline Browns request for child support from
her father because, consistent with common law, a bastard was
considered as kin to no one, and was, therefore, incapable of being the heir
of any person. No inheritable blood flowed through [her] veins.282 The
Court also summarily rejected her Fourteenth Amendment challenge as
having no m
erit.283
Twenty-two years later, in Levy v. Louisiana,284 the U.S. Supreme
Court drew a line in the shifting sands of the culture wars and refused to
allow children to be the object of government-sponsored discrimination in
its efforts to regulate adult relationships. As a society, we look back on the
treatment of nonmarital children and are shocked by the callous disregard
for them and the limited notion of who constitutes a
parent.
Today, children of same-sex parents and society are at a similar
crossroads. As this Article has demonstrated, children of same-sex parents
279. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985).
280. See Levy v. Louisiana, 391 U.S. 68, 71 (1968) (
[W]e have been extremely sensitive when it
comes to basic civil rights and have not hesitated to strike down an invidious classification even
though it had history and tradition on its side.) (internal citations omitted); U.S. Dept of Agric. v.
Moreno, 413 U.S. 528, 534 (1973) (
[I]f the constitutional conception of equal protection of the laws
means anything, it must at the very least mean that a bare congressional desire to harm a politically
unpopular group cannot constitute a legitimate governmental interest.); City of Cleburne, 473 U.S. at
447 (striking down zoning regulation on basis of mental disability under rational basis because
motivated by
a bare . . . desire to harm a politically unpopular group) (quoting Moreno, 413 U.S. at
534); Romer v. Evans, 517 U.S. 620, 631 (1996) (striking down Colorados Amendment 2 because it

impose[d] a special disability upon [homosexuals] alone). For a more nuanced discussion about
refining the role of animus in equal protection analysis, see Nan D. Hunter, Animus Thick and Thin:
The Broader Impact of the Ninth Circuit Decision in Perry v. Brown, 64 STAN. L. REV. ONLINE 111,
112 (2012) (responding to William N. Eskridge, Jr., The Ninth Circuits Perry Decision and the
Constitutional Politics of Marriage Equality, 64 STAN. L. REV. ONLINE 93 (2012)) (asserting that a
law that singles out a socially disfavored group for the withdrawal of an important right
reeks of
animus).
281. 32 S.E.2d 80 (Va. 1944).
282. Id. at 80.
283. Id. at 81.
284. 391 U.S. 68 (1968).

Page 54 of 55

3:13-cv-02351-JMC

Date Filed 11/05/14

Entry Number 86-4

p 1589 Smith book pages.docx9/23/2013

2013] EQUAL PROTECTION FOR CHILDREN OF SAME-SEX COUPLES

1641

are denied important economic safety netssafety nets that children of


married parents obtain as a matter of coursebecause of the states
imputation of morality upon them. Such government-sponsored
discrimination is not justifiable on the basis of preserving traditional
family values or to ensure administrative efficiency. Somewhere in middle
America, there is a child of same-sex parents who has been denied a
government benefit and deserves redress from this violation of her equal
protection of the laws under the Fourteenth Amendment. Lets hope she
need not wait two decades, as did Jacqueline Brown, for the law to catch
up with what she already knows is fair.

Page 55 of 55