Marriage Equality and its Relationship to Family Law

129 Harvard Law Review Forum 197 (2016)

UC Davis Legal Studies Research Paper No. 499

16 Pages Posted: 20 Jun 2016 Last revised: 28 May 2017

See all articles by Courtney G. Joslin

Courtney G. Joslin

University of California, Davis - School of Law

Date Written: June 15, 2016

Abstract

This Essay is a Response to Professor Douglas NeJaime’s article Marriage Equality and the New Parenthood. NeJaime’s piece offers critical new insights into the evolution of legal parenthood and its relationship to marriage. First, NeJaime shows how evolving protections for nonbiological parents served as stepping stones in the march toward marriage equality. Surprisingly, few scholars have acknowledged, much less carefully explored, this connection. Second, NeJaime uses his meticulous parentage case study to complicate our understanding of the extent to which this earlier parentage advocacy directly challenged marriage’s privileged role in our society. Finally, NeJaime argues that this history suggests more progressive possibilities with regard to the future legal treatment of nonmarital children post-Obergefell.

After highlighting these three key contributions, this Essay makes two additional points. First, this Essay considers why this important story about parentage law and its relationship to marriage equality has attracted less attention than it deserves. Second, this Essay considers a critical possibility not addressed by NeJaime. NeJaime uses parentage law to show how Obergefell might facilitate, rather than foreclose, additional protections for nonmarital children. This Essay posits an even more radical proposition: it argues that marriage equality might open up progressive possibilities not just for nonmarital children, but also for nonmarital adult relationships.

Keywords: marriage, marriage equality, Obergefell, parent, parenthood, parentage, nonmarital, child, nonmarriage, biology, family law, equal protection, due process

Suggested Citation

Joslin, Courtney G., Marriage Equality and its Relationship to Family Law (June 15, 2016). 129 Harvard Law Review Forum 197 (2016); UC Davis Legal Studies Research Paper No. 499. Available at SSRN: https://ssrn.com/abstract=2796280

Courtney G. Joslin (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Drive
Davis, CA CA 95616
United States
(530) 752-8325 (Phone)

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