Family Law Article 129 Harv. L. Rev. 1185

Marriage Equality and the New Parenthood



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 legal efforts in California from the mid-1980s to the mid-2000s, this Article recovers the role of marriage in early 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 through a family law regime in which same-sex couples can marry. By uncovering these transformative aspects of marriage equality, this Article challenges some of 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 nonbiological parents, and perhaps even marital and nonmarital families.

* Professor of Law, UCLA School of Law; Faculty Director, The Williams Institute. I received generous research support from both the UCLA School of Law and the University of California, Irvine School of Law. For helpful comments, I thank Tendayi Achiume, Susan Appleton, Carlos Ball, Noa Ben-Asher, Grace Blumberg, Courtney Cahill, Ann Carlson, Liz Chiarello, Brietta Clark, Glenn Cohen, Beth Colgan, Kristin Collins, Scott Cummings, Jon Davidson, Debbie Dinner, Martha Ertman, Dov Fox, Cary Franklin, Marie-Amélie George, Cynthia Godsoe, Laura Gómez, Tiffany Graham, Joan Hollinger, Courtney Joslin, Jennifer Levi, Justin Levitt, Kaipo Matsumura, Serena Mayeri, Linda McClain, Jon Michaels, Shannon Minter, Jennifer Mnookin, Rachel Moran, Steve Munzer, Melissa Murray, Yxta Murray, Sasha Natapoff, Jason Oh, Nancy Polikoff, Elizabeth Pollman, Laura Rosenbury, Jennifer Rothman, Joanna Schwartz, Elizabeth Scott, Seana Shiffrin, Reva Siegel, Katharine Silbaugh, Ed Stein, Kathy Trisolini, Michael Waterstone, Kimberly West-Faulcon, Deborah Widiss, Jordan Woods, and Noah Zatz; participants at faculty workshops at UCLA, the University of Miami, and Washington University in St. Louis; and participants at Boston University’s Gender Law and Policy Colloquium, the University of Colorado’s Rothberger Conference, the 2015 Baby Markets Roundtable at Harvard Law School, the 2014 Family Law Scholars and Teachers Conference at the University of Minnesota, and the 2014 Law and Society Association Annual Meeting. I am most grateful to the lawyers who donated their time and supplied their personal files. For research assistance, I thank Justin Aufderhar, Ian Lumiere, Justin O’Neill, and Seth Williams, and for research support I thank the law librarians at UC Irvine and UCLA. I also thank the editors of the Harvard Law Review.