Marriage Equality and the New Parenthood

82 Pages Posted: 14 Jul 2015 Last revised: 11 Mar 2016

Date Written: July 14, 2015

Abstract

Now that same-sex couples have a nationwide right to marry, a new generation of questions about the legal regulation of the family is emerging. While integral to the future of same-sex family formation, these questions also implicate the family-law regime more generally. By integrating developments in family law governing different-sex and same-sex couples, biological and nonbiological parents, and marital and nonmarital families, this Article shows how marriage equality was enabled by — and in turn enables — significant shifts in the law’s understanding of parenthood.

Using a case study of work in California from the mid-1980s to the mid-2000s, this Article recovers the role of marriage in earlier LGBT parenting litigation on behalf of unmarried parents. It shows how that litigation reshaped norms governing marriage and parenthood. In the late twentieth century, the law increasingly recognized (presumptively heterosexual) parents on grounds independent of marriage and biology. As the law protected the rights of unmarried, biological fathers, it also began to recognize married, nonbiological parents, largely in response to families formed through assisted reproductive technologies (ART) and to stepparent families. LGBT advocates leveraged both developments to elaborate a new model of parenthood capable of recognizing their constituents’ nonmarital, nonbiological parent-child relationships. Eschewing formal parentage markers, including biology, gender, and marital status, advocates instead built parentage around intentional and functional relationships.

This new model of parenthood is embedded in marriage equality and is extended in a family-law regime in which same-sex couples can marry. By uncovering these transformative aspects of marriage equality, this Article challenges the historical, normative, and predictive dimensions of prominent critiques of same-sex marriage as conservative and assimilationist. More broadly, it reveals how marriage equality can facilitate the expansion of intentional and functional parenthood for all families, and thereby can continue to reduce distinctions between same-sex and different-sex couples, biological and non-biological parents, and perhaps even marital and nonmarital families.

Keywords: same-sex marriage, marriage equality, parenthood, parentage, family law, LGBT, Obergefell, parenting

Suggested Citation

NeJaime, Douglas, Marriage Equality and the New Parenthood (July 14, 2015). 129 Harvard Law Review 1185 (2016); UCLA School of Law Research Paper No. 15-22. Available at SSRN: https://ssrn.com/abstract=2630748

Douglas NeJaime (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
543
rank
46,445
Abstract Views
2,675
PlumX