With the Supreme Court's marriage decision in Obergefell vs. Hodges, one might think that equality for gay families has arrived. But that would be a mistake. The court's ruling could work to produce new conflicts and intensify old ones. The danger arises because marriage equality doesn't immediately or necessarily erase cultural and legal attachments to biological, dual-gender parenting.
Consider the position of David Blankenhorn, head of the Institute for American Values and star witness in favor of Proposition 8 when California's gay-marriage ban went on trial in 2010. Back then, Blankenhorn justified such bans based on "[t]he need … to make it as likely as we can, that the biological parents are also the social and legal parents." In 2012, Blankenhorn announced a change of heart on same-sex marriage, but he still hoped "both gays and straight[s]" could agree that "children born through artificial reproductive technology [have] the right to know and be known by their biological parents."
Same-sex couples often have children through assisted reproductive technologies. Research from the Williams Institute at UCLA shows that lesbian and gay people are much more likely than heterosexuals to be raising nonbiological children. By continuing to emphasize biological family ties, Blankenhorn could endorse same-sex marriage yet maintain the second-class status of families formed by same-sex couples. Today, the Center for Marriage and Families at Blankenhorn's institute is advocating significant restrictions on reproductive technologies. His position reveals how old arguments against same-sex marriage may find new life in refusals to accept and acknowledge married same-sex parents.
What's known as the marital presumption is emerging as a battleground. Traditionally, a husband is legally presumed to be the father of a child born to his wife. But some states are resisting the presumption's application to lesbian spouses. In one high-profile case, officials in Iowa refused to list the biological mother's wife on the birth certificate of the child they had conceived through donor insemination. Iowa officials argued that the law "recognizes the biological and 'gendered' roles of 'mother' and 'father,' grounded in the biological fact that a child has one biological mother and one biological father." Essentially the state excluded the nonbiological mother because she was not a biological father.
The situation for gay men is different, and even more daunting. While lesbian couples have long used donor insemination to have children, gay male couples have increasingly turned to surrogacy, and most commonly gestational surrogacy, in which the surrogate carries a child genetically related to another woman — an egg donor — and one of the men.
Under traditional parentage principles the birth mother would be the presumed mother of the child and her husband, if she were married, would be the presumed father. Some states have accommodated the complexities of surrogacy. They leave the surrogate mother out of the parentage picture and recognize the intended parents as the legal parents without requiring that they adopt the child. That works for gay male couples; even if states require the intended parents to be married, gay couples can now meet that requirement.
But states can still find ways to exclude same-sex couples. For example, Arkansas law uses gendered language. It considers the parents in a surrogacy situation to be the "biological father and the woman intended to be the mother." Last year, Louisiana lawmakers passed a bill, vetoed by Gov. Bobby Jindal, that would have allowed gestational surrogacy only for couples who do not need donor egg or sperm — by definition, foreclosing surrogacy for gay couples, even when married.
Still other states reject surrogacy comprehensively. New York prohibits it. New Jersey — home of the infamous Baby M decision, which recognized a "traditional" surrogate (her own eggs were fertilized) as a child's mother, despite her agreement to the contrary — remains hostile to compensated surrogacy. In 2009, a New Jersey court recognized a gestational surrogate as a legal parent, over the objection of the biological father and his same-sex partner.
Fortunately, even though marriage equality doesn't immediately erase all attachments related to biological, dual-gender child rearing, it points us in the right direction. In the Supreme Court's majority opinion, the justices validated same-sex parenting and even premised marriage equality on the vitality of gay families. After declaring that a "basis for protecting the right to marry is that it safeguards children and families," Justice Anthony Kennedy explained that "same-sex couples provide loving and nurturing homes to their children, whether biological or adopted." Relying on Williams Institute research, he noted that "hundreds of thousands of children are presently being raised by same-sex couples." The majority affirmed a model of parenthood based on chosen, functional bonds rather than biology alone.
At the state level, we have already seen the effect of earlier marriage equality laws. In the marital presumption dispute described above, the Iowa Supreme Court ultimately found that marriage equality meant that the state must treat same-sex couples just like "spouses and parents in an opposite-sex marriage." The nonbiological mother got her parentage rights and the purpose of the marital presumption was made clear: "identifying a child as part of [her] family," not identifying the biological father. Biology and gender took a back seat to actual family formation.
Marriage equality also sheds light on how to resolve conflicts over surrogacy. States that reject surrogacy and refuse to recognize the intended parents perpetuate the unequal treatment of same-sex families, allowing biological and gendered notions of parenthood to dominate. It seems illogical to premise marriage equality on the vitality of gay families and yet erect obstacles to same-sex couples' attempts to parent.
The battle over LGBT equality is far from over. But the court's embrace of marriage equality takes a stand for sexual-orientation equality, and it should mean that ultimately lesbian and gay families will receive equal treatment under the law.
Douglas NeJaime is a law professor at UC Irvine. He joins the faculty of the UCLA School of Law at the end of the month, where he will also be faculty director of the Williams Institute.