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Gay Parenting Rights and the Supreme Court

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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, XXXXX. 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. The judge admitted that if the co-parent “were a man in the same position, the law might point toward a different ruling.”
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 (those issued to adoptive parents) to include only one mother and one father in order to continue the state’s “commitment to conservative values.” The provision remains despite attempts to remove it. Same-sex couples in Iowa, Indiana, and Pennsylvania have faced (and have litigated) similar restrictions on their ability to be co-listed as parents on vital records despite being legally married in their states. Same-sex marriage, explained a registrar in Indiana, “doesn’t really change the way a birth record is done, because birth certificates all have to do with biological parents.”
July 08, 2015 8:52 AM
Gay Parenting in the Post-Obergefell World
By Alison Gash Washington blog

One are 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.

In their unanimous decision, the justices wrote: “A state may not disregard the judgment of a sister State because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits”. “On the contrary, ‘the full faith and credit clause of the constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.’”

The Supreme Court decision in Obergefell issued in 2015 ruled …. But this decision did not serve to rule out gay discrimination on other fronts (see our blog post:

But the decision served a blow to anti-gay

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 last term.

Legal Recognition of LGBT Families