Gay Parenting Rights and the Supreme Court

In a landmark decision in 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges, that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This decision represented a great victory for gay rights. Despite this decision, anti-gay forces are continuing to find ways to wage war against gay rights including adoption rights. But that decision did not end the fight for gay rights and importantly for gay parenting rights. States can and still do continue to deny lesbian and gay parents the legal protections of parenthood despite their marital status.

A legally recognized parent has custody rights and can make educational and medical decisions about the child and is obligated to support the child.

The anti-gay movement has continued to wage a battle against gay rights including gay parenting rights. There are numerous fronts of the attack.

In 2012, for instance, a family court judge in New York, shortly after the state legalized marriage for gay and lesbian couples, denied a lesbian mother standing to seek joint-custody of her son after she and her wife separated. Because the two were not married at the time of their son's birth (no law would permit them to do so) the non-biological parent was left with no legal connection to her son, even after their marriage was legalized.

States may also establish mechanisms for administering or disseminating vital records that rest not on one's marital status but on the parent's gender. In 1997, for instance, Texas modified its family code provisions to require any supplemental birth certificate to include only one mother and one father. Same-sex couples in Iowa, Indiana, and Pennsylvania have faced similar restrictions on their ability to be co-listed as parents on vital records despite being legally married in their states.

One area of attack involves "marital presumption." Traditionally, when a legally married couple have a child, both are automatically presumed to be the legal parents of the child. The unanimous Supreme Court decision is not as much about gay adoption rights as it is about the Full Faith and Credit Clause of the U.S. constitution. In this case, the Louisiana Supreme Court refused to recognize an adoption decree issued by a court in the state of Georgia involving a lesbian couple.

The case reflected all the ways in which custodial rights for same-sex couples will continue to be a fraught and complicated issue in the state courts, even with the question of same-sex marriage resolved.