Commentary

Same-Sex Married Partners Are Not the Same as Dual-Gendered Married Parents

Lynn Wardle
By Lynn Wardle | September 26, 2017 | 12:20 PM EDT

(Wikimedia Commons Photo/Emily Walker from Wellington, New Zealand)

In American family law, there are profound differences between the “horizontal” relations of adult partners (marriage, domestic partnerships, etc.) and the “vertical” relations of adults and children (parentage, guardianship, etc.). The focus of marriage is on the union of equals. The focus of parentage is on protection by adults of vulnerable dependent children. Sadly, some courts conflate those two different types of family relationships and ignore the distinctions between them.

The Arizona Supreme Court committed that conflation error when it ruled this week in McLaughlin v. Jones and McLaughlin that the Obergefell v. Hughes decision of the Supreme Court requires states to confer the same parentage rights and presumptions on same-sex partners as it confers on heterosexual partners of married persons who give birth. 

In Obergefell the Supreme Court of the United States ruled that the U.S. Constitution requires states to allow same-sex couples to marry just as it allows opposite-sex couples to marry.  The rationale of the decision was that same-sex couples are comparable to and situated equally to opposite-sex couples when it comes to the general state interests in marriage and the state purpose for regulating marriage.  Those rationales are debatable, of course, but the focus was on the adult relationship.  However, the Court noted that many same-sex couples are raising children and opined that to deny those couples the status of marriage could demean and stigmatize their children. 

One key purpose of marriage laws and regulations is to protect and preserve the relationship of equality between the spouses, to respect the contributions of both spouses.  It focuses on adult interests. 

On the other hand, the presumption of spousal parentage speaks to the vertical relationship of parent and child. While it protects both the adults interests of the parent and the welfare of the child, the predominate focus and the primary state concern of laws regulating parent-child relations is to protect the best interests of the child. 

That is where the Arizona Supreme Court stumbled in its McLaughlin decision.  The key flaw in the Arizona court’s analysis is equating parenting and marriage.  The court viewed the issue about whether the state had to extend the spousal parentage presumption to same-sex partners as governed by the Obergefell same-sex marriage ruling.  It viewed parentage not as a distinct, important relationship and issue, but as merely an incident of marriage

The flaw of that approach was described by a candid gay father writing in the New York Times Sunday Review.  He wrote:

“Sometimes when my daughter, who is 7, is nicely cuddled up in her bed and I snuggle her, she calls me Mommy. I am a stay-at-home dad. My male partner and I adopted both of our children at birth in open domestic adoptions. We could fill our home with nannies, sisters, grandmothers, female friends, but no mothers.

“My daughter says ‘Mommy’ in a funny way, in a high-pitched voice. Although I refer the honors immediately to her birth mom, I am flattered. But saddened as well, because she expresses herself in a voice that is not her own. It is her stuffed-animal voice. She expresses not only love; she also expresses alienation. She can role-play the mother-daughter relationship, but she cannot use her real voice, nor have the real thing.”

However, as the Arizona Supreme Court noted, the recent U.S. Supreme Court decision in Pavan v. Smith, 137 S.Ct. 2075 (2017) (per curiam) probably was dispositive of the McLaughlin case.  In Pavan the Supreme Court of the United States reversed an order of the Arkansas Supreme Court that held that Obergefell did not require the state to list the same-sex spouse of the birth mother on the child’s birth certificate because Obergefell only concerned the right to enter into the adult relationship of marriage. The denial of same-sex spousal parentage recognition on the birth certificate, the U.S. Supreme Court ruled, violated Obergefell’s commitment to provide same-sex couples “the constellation of benefits that the states have linked to marriage.” 137 S.Ct. at 2077 (quoting Obergefell at 135 S.Ct. at 2601).  

Tragically, the Arizona Supreme Court ruling in McLaughlin, like the U.S. Supreme Court decisions upon which it is based, substitute adult interests and perspectives for children’s interests and perspectives.  They sacrifice children’s interests to adult interests.  Sadly, that distortion is not limited to judicial opinions.  Our society consistently sacrifices the well-being of children to adult preferences. 

So the same-sex parentage presumption issue appears to be settled, at least for the present time.  Same-sex partners presumably must receive the same treatment in parentage law and presumptions as opposite-sex partners.

Advocates for children and traditional families must work for and look forward to the day when legal recognition of the unique personal and social significance of dual-gender parenting for children is restored.  However, we must face the reality that currently the Supreme Court rulings seem to require states to equate same-sex parenting with dual-gender parenting in most situations.   

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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