I am honored to have this opportunity to respond to Professor Douglas NeJaime’s important and insightful article, Marriage Equality and the New Parenthood.1 In an earlier piece, Before Marriage,2 NeJaime offers a comprehensive and detailed history of advocacy efforts to establish domestic partnership protections in California in the 1980s, 1990s, and 2000s. New Parenthood adds another layer to this historical account by exploring the evolution of legal protections for nonmarital, nonbiological parents in California during those periods. Given California’s leadership in these areas, these state-specific case studies tell a valuable story about the evolution of families and family law more broadly.3
Other scholars have written about some of the cases explored in New Parenthood. But New Parenthood is not simply a description of court decisions. Instead, through historical research and first-person interviews, NeJaime offers a deeper, more nuanced story that explores who was working on these cases, what these advocates sought to accomplish, and the constraints against and within which they were working. Scholars and advocates alike are indebted to NeJaime for providing such a rich and detailed account of these developments.
In addition to documenting this history, NeJaime uses the uncovered material to offer critical insights about the marriage equality movement and its effects. First, New Parenthood shows how these evolving protections for nonbiological parents served as stepping stones in the march toward marriage equality.4 Surprisingly, despite their central role in this process, few scholars have acknowledged, much less carefully explored, this connection.
Second, NeJaime uses his parentage case study to complicate the increasingly dominant narrative of marriage-equality skeptics.5 Here, I am referring to a group of scholars and advocates who support LGBT rights but who express concerns about the way marriage equality was achieved.6 These scholars suggest that the marriage equality movement derailed earlier efforts to unseat marriage from its privileged position.7 Using the lens of parenthood, NeJaime provides a more complex understanding of the extent to which earlier parentage advocacy did indeed challenge marriage’s privileged role in our society, as well as a more optimistic vision of the legal treatment of nonmarital children post-Obergefell.8
In this short Essay response, I have three goals. First, I hope to highlight some of the key contributions that New Parenthood offers. Second, I ponder why this important story about parentage law and its relationship to marriage equality has attracted less attention than it deserves. Third and finally, 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. Here I posit an even more radical proposition: I argue that marriage equality might open up progressive possibilities not just for nonmarital children, but also for nonmarital adult relationships.
I. Parenthood and Marriage Equality
New Parenthood offers a meticulously constructed history of advocacy on behalf of nonbiological parents in California from the mid-1980s through the mid-2000s. In most planned same-sex parent families, only one intended parent (if any) has a genetic connection to the resulting child.9 These couples, of course, were also prohibited from marrying prior to Obergefell. Because one of the two parents was unconnected to their child through either genetics or marriage, many of these children were “tragic[ally]”10 cut off from, or denied benefits through, their nonbiological parents.11
LGBT activists,12 alongside others, therefore worked to develop means of recognizing, protecting, and valuing the relationship between nonbiological parents and their children.13 As NeJaime explains, today, these relationships can be protected through second-parent adoptions;14 the expansion of rights for intended parents of children born through assisted reproductive technology;15 and the “holding out” provision of the Uniform Parentage Act (UPA), which creates a presumption of parentage based on functional parental conduct.16 These developments were and continue to be vitally important to many families, including but not limited to same-sex parent families. Where applicable, these protections ensure that children are not abruptly cut off from one of their parents simply because that person lacks a genetic connection.
To be sure, some family law scholars have written about (some of) the parentage developments discussed in New Parenthood.17 What has received much less attention and what New Parentage explores is the relationship between these developments in parentage law and the path to marriage equality. Over the past several decades, those opposed to same-sex marriage relied primarily on arguments about children. These arguments mutated over time.18 In recent years, the primary argument went something like this: the exclusion of same-sex couples from marriage was permissible because same-sex couples cannot provide the ideal setting for the raising of children — a home with two biological parents.19
As a result of the legal changes documented in New Parenthood, however, this argument became “totally inconsistent . . . with the operation of . . . family laws.”20 As Professor Joan Hollinger and I explained in a brief we filed on behalf of family law professors in Obergefell:
[State family] laws do not privilege parenting by biological parents who parent in “gender differentiated” ways over other forms of parenting. States afford full parental rights to legal parents who have no biological or genetic ties to a child. In many circumstances, a biological or genetic tie is neither necessary nor sufficient to establish a legal parent-child relationship.21
By taking away opponents’ primary defense, marriage equality was “enabled by . . . intentional and functional concepts of parenthood forged in earlier nonmarital advocacy.”22
II. Parenthood and Marital Supremacy
The historical account documented in New Parenthood also provides an important lens for assessing past and future activism. In recent years, a growing number of scholars who support LGBT equality have criticized the marriage-equality movement. Some of these marriage-equality skeptics suggest that earlier LGBT rights work largely (and rightly) challenged the primacy of marriage,23 and that the more contemporary marriage-equality work strategically and regrettably jettisoned this goal by advocating for “same-sex-couple-headed families [only] to the extent that they replicate heterosexual, marital norms.”24
NeJaime is also concerned about the extent to which the law privileges and prioritizes marital relationships over nonmarital ones.25 But while he shares this concern, NeJaime’s case study offers a more nuanced picture that suggests skeptics might have both overstated the extent to which earlier advocacy destabilized marital supremacy, and underestimated the future “progressive family law possibilities offered by marriage equality.”26
While it is surely true that many of the earlier LGBT activists sought to destabilize marriage, or at least make marriage matter less, they too — like the plaintiffs in Obergefell — were working within political and practical restraints. “Even if advocates wished to destabilize marriage — and certainly some did,” NeJaime writes, “they were constrained by a legal, political, and cultural framework that prioritized marriage in the recognition of familial and sexual relationships. . . . Ultimately, work often remembered for destabilizing marriage accepted and prioritized key elements of marriage.”27
This assessment was likewise true in the parentage context. While earlier LGBT advocates sought to expand notions of parenthood in a variety of ways, their work often stressed the extent to which the families at issue looked and acted like marital families.28 This observation is not to detract from the importance of the work, or from its potential to protect a wider array of families and family forms. The point is more modest: while advocates pressed on some boundaries, their work nonetheless often took advantage of the similarities between these families and marital ones.29 When one looks at this earlier activism through the lens of parentage cases, one can more clearly see the role that analogies to heterosexual marriage played in the work.
Using the lens of parentage also provides a more complex, and ultimately more optimistic, vision of the future. There has been an outpouring of scholarship in the wake of Obergefell suggesting that while the decision might be a victory for those same-sex couples who want to marry, it is a setback for nonmarital families.30 While these critiques deserve thoughtful attention, they should not obscure the decision’s progressive potential.31
To be sure, whether protections for nonmarital children will expand or contract going forward remains an open question. Professor Nancy Polikoff,32 Professor Joanna Grossman,33 and I34 argue that some courts and policymakers may be less likely to protect nonmarital functional parenthood in the wake of marriage equality. The thinking would go something like this: In the past, same-sex couples were excluded from all of the protections of marriage, including the marital presumption of parentage. Thus, it was necessary for courts to apply equitable principles to avoid the harms this marriage exclusion would otherwise impose on children raised by these couples. Now that same-sex couples can marry, courts will be more reluctant to act in equity because same-sex couples can get protection if they want it — they just need to get married. In recent years, some courts have indeed followed this logic.35
While regression is possible, viewing the future through the lens of parentage makes it harder to overlook positive parentage developments that have occurred alongside marriage equality. As NeJaime reminds us, in the years leading up to permanent marriage equality in California, LGBT advocates successfully achieved a range of protections for nonmarital parenting.36 Among other things, in 2013, California enacted legislation permitting courts to recognize more than two parents.37 Just months after marriage equality returned to California, the Governor signed into law legislation that expanded the assisted reproduction provisions equally to married and unmarried couples.38 Again, NeJaime argues that these developments were facilitated rather than hindered by marriage equality.
Thus, while marriage-equality skeptics raise significant and plausible concerns about the legal treatment of nonmarital families going forward, NeJaime’s case study suggests how marriage equality may continue, rather than cut against, earlier developments recognizing and protecting greater family diversity. Or, as NeJaime says: “Perhaps paradoxically, then, marriage equality may further blur, rather than just redraw, the line between marital and nonmarital parental recognition.”39 It is important not to shut the door on these progressive possibilities.
III. Overlooking Parenthood
As New Parenthood demonstrates, the evolution of parentage law is critical to an understanding of how marriage equality was achieved. Some courts did see and appreciate this connection.40 The Ninth Circuit, for example, relied upon the discord between contemporary parentage law and the claims of marriage equality opponents. Opponents argued that the state had an interest in having children raised by their “two biological parents.”41 This argument could not be credited, the Ninth Circuit explained, because it was simply inconsistent with California law. California law, the Ninth Circuit declared, “actually prefers a non-biological parent who has a parental relationship with a child to a biological parent who does not; in California, the parentage statutes place a premium on the ‘social relationship,’ not the ‘biological relationship,’ between a parent and a child.”42
But among the thousands, if not tens of thousands, of law review articles on same-sex marriage, there are surprisingly few that explore this interconnection between marriage equality and the evolution of parentage law.43 Why is this the case? I suggest that at least a partial explanation is related to the devaluation of family law.
“Family law is extraordinarily consequential . . . .”44 Family law rules affect with whom one can enter a legally recognized relationship. They affect whether one can access critical financial benefits, like spousal death benefits, or children’s social security benefits.45 Family law rules may affect whether one is entitled to need-based benefits like welfare.46 Yet despite their enormously consequential nature, family law matters are often unseen or at least underappreciated.47
As NeJaime notes, the devaluation of family law shaped even the LGBT rights movement itself. In the early years of LGBT rights advocacy, few LGBT organizations worked on, much less prioritized, custody and other parentage cases.48 Indeed, the National Center for Lesbian Rights (NCLR) “was founded to address family law issues, which were core lesbian concerns that NCLR’s founders saw as marginalized by other organizations at the time.”49
Today, many within the LGBT movement now appreciate the importance of family law issues. But in many other realms, family law matters continue to be devalued.50 Family law matters are often excised from classes in which there are overlapping issues.51 Family law jurisdictional rules are rarely a focus of civil procedure courses, for example, despite the fact that family law matters often involve a range of jurisdictional questions. The omission of family law cases from “core” courses like civil procedure reinforces the perception that family law matters are not important, or at least that they are less important.52 And, indeed, this belief is sometimes expressed more overtly. Professor Judith Resnik, for example, has written about advice she received at the beginning of her academic career. “Be careful,” she was told. “Don’t teach in any areas associated with women’s issues. Don’t teach family law; don’t teach sex discrimination. Teach the real stuff, the hard stuff: contracts, torts, procedure, property.”53 Resnik reports that she has heard similar stories from other female academics throughout her career, and that these stories are not simply relics of the past.54
When family law cases are studied in law school, their family law nature is often invisible. Many of the cases taught in constitutional law, for example, are family law cases.55 But these cases typically are not seen or talked about as family law cases.56 The invisibility of family law in constitutional law cases is perhaps most vividly illustrated by the persistence of the narrative of family law localism. The narrative posits that family law is inherently local, beyond the scope of the federal government or the federal courts.57 The narrative of family law’s localism pervades Supreme Court decisions,58 textbooks,59 case briefs,60 and the mainstream media.61 The narrative is widely accepted and repeated despite the fact that the Supreme Court itself has decided a wide array of family law cases62 — cases ranging from the right to marry,63 to the right to have children,64 to the right not to have children,65 to sex discrimination cases challenging family law rules and roles.66 The cases can be reconciled with the narrative if they are seen as something else — fundamental rights cases or sex discrimination cases — rather than as family law cases. And, indeed, this is true of Obergefell itself. Many of the hundreds of important law review articles exploring marriage equality grapple with “the real stuff, the hard stuff” — principles of equal protection and due process. Few articles examine the marriage equality cases as family law cases, from a family law perspective.
New Parenthood reminds us of some of the critical legal insights that can be lost when we fail to see legal questions as family law questions or through the lens of the family.
IV. Looking Beyond Parenthood
NeJaime closes New Parenthood with the new and critical point that marriage equality may hold underappreciated progressive potential for nonmarital children. In so doing, NeJaime complicates the narrative of marriage-equality skeptics who offer more dire predictions about the future. In my remaining space, I also respond to the marriage-equality skeptics. But I make a different and arguably more radical claim. I argue that Obergefell may hold progressive potential for adults in nonmarital relationships.
Even if one accepts NeJaime’s claim that Obergefell may not stifle legal protections for nonmarital children, one may nevertheless push back on this claim about Obergefell’s progressive potential for the rights of unmarried adults. Skeptics may point out that in the past, increased protection for nonmarital children did not lead to significant protections for nonmarital adult relationships.67 The illegitimacy cases of the 1960s and 1970s, for example, brought about important protections for nonmarital children.68 In a series of cases, the Court struck down laws that denied nonmarital children the right to parental child support,69 the right to intestate succession through their fathers,70 and the right to sue for the wrongful death of their parents.71 However, “these decisions hardly championed the equal status of adults who lived outside the bonds of marriage.”72 This divide between the legal treatment of nonmarital children as compared to the legal treatment of their parents arose because of the way these cases were decided. The illegitimacy cases stand for the proposition that it is unfair to punish “‘innocent’ children for the ‘sins’ or ‘transgressions’ of their parents.”73 Thus, even after these decisions protecting nonmarital children, it was generally permissible to punish unmarried cohabiting adults directly for their “sins.”
Some contend this principle was reinforced by the Court’s decision in Obergefell. In striking down marriage bans, the Obergefell Court relied in part on the notion that it was unfair to punish the innocent children of same-sex couples.74 Marriage bans, the Court explained, “humiliate[d]”75 the children of same-sex couples. “Without the recognition, stability, and predictability marriage offers,” Justice Kennedy declared, “the[] children [of same-sex couples] suffer the stigma of knowing their families are somehow lesser.”76 Thus, there may be reason to hope that nonmarital children will continue to be protected, even post-Obergefell. But, one may continue, this language does not even gesture towards robust protections for the adults who choose not to accept “the recognition, stability, and predictability marriage offers.”77
Past experience and some of the language in Obergefell do indeed suggest that caution is warranted. There are other aspects of Obergefell, however, that provide cause for optimism. Here I highlight one. In Obergefell, the Court reaffirmed a dynamic theory of constitutional law that takes account of “society’s evolving experience.”78 Among other changes, the Obergefell Court took into account the evolving law of families. Indeed, it was by taking into account changes in the law of families that the Court was able to see and appreciate the constitutional violation at issue.
In the past, same-sex sexual conduct was often criminalized.79 In such a world, excluding same-sex couples from marriage not only appeared constitutionally permissible, but also seemed like the only possible approach. The law has changed since then. Same-sex couples have a constitutionally protected right to engage in sexual intimacy.80 Starting in the 1980s, cities and then states extended legal recognition and rights to individuals in same-sex relationships.81 Due in part to these legal changes, more and more same-sex couples began living together openly. Today, there are hundreds of thousands of same-sex couples in the United States.82 These couples are raising “hundreds of thousands of children.”83 Many states legally recognize and affirm these families.84 In light of these evolving protections, it becomes more difficult to explain why same-sex couples should be excluded from marriage. These changes, the Court explained, bring to the fore a constitutional violation that had previously been invisible. Or, as Justice Kennedy put it, by examining society’s evolving experience, “new dimensions of freedom become apparent to new generations.”85
These principles can and must be applied to those in nonmarital families. As was true for same-sex couples, nonmarital relationships were wholly criminal in the past.86 Marriage was the only legally sanctioned relationship available to intimate couples. Not surprisingly, most couples who could marry, did marry. In such a world, marriage was indeed a core “building block of our national community.”87
But, as is true with parentage and same-sex couples, the law has changed. Today, adults have a constitutionally protected right to form nonmarital relationships,88 and to engage in sexual intimacy with a nonmarital partner.89 In the past, most courts held that agreements between nonmarital partners were void as against public policy.90 Today, almost all states enforce these agreements, and many will also allow equitable claims upon the dissolution of the relationship.91 Children that result from these nonmarital relationships are entitled to equal treatment.92 As the law has changed, so has society. A large and ever-growing segment of the U.S. population is living in nonmarital families. In 2008, just over half (fifty-two percent) of American adults were married.93 This rate is down from seventy-two percent in 1960. Over forty percent of all children born in the United States are born to unmarried women.94
As a result of changes in law, “[m]arriage is not what it used to be.”95 Marriage, once a largely if not almost universally shared norm, has been joined by other family forms. Along with marriage, these other, nonmarital family forms now serve as critical building blocks of society. In some communities, nonmarital families constitute the dominant family form.96 Despite these changes, many of our family law rules continue to privilege marital families.
In assessing the constitutionality of rules that exclude or even penalize those who live outside of marriage, Obergefell teaches that our “evolving experiences” must be considered. When these “evolving experiences” — including both the legal changes, as well as the social changes they spur — are brought to the fore, it becomes clearer that rules that privilege marital relationships over nonmarital ones may present a “claim to liberty [that] must be addressed.”97
Conclusion
Scholars and advocates alike are indebted to Professor NeJaime for bringing attention to this overlooked and underappreciated body of parentage law. NeJaime uses this lens of parenthood to offer new and critical insights into both the path to marriage equality, and the future ahead. And importantly, his story complicates the increasingly dominant narrative that success for the LGBT movement may mean regression for those who do not marry. Marriage equality, NeJaime argues, may result in greater protections not just for marital parents but also for nonmarital parents.
I agree with NeJaime. But I think that Obergefell’s progressive potential need not stop there. By embracing a constitutional theory that requires consideration of our evolving experience, Obergefell opens up the possibility of rethinking the marriage/nonmarriage divide that continues to shape the law not only of parentage, but also of adult nonmarital relationships.
* Professor of Law, U.C. Davis School of Law. The title of this essay draws from Professor NeJaime’s article, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage, 102 Calif. L. Rev. 87 (2014). I thank David Horton, Shannon Minter, Doug NeJaime, and Andrea Roth for helpful feedback. I also thank my research assistant, Ari Asher.