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Are our same-sex-parented families as legally secure today as we imagine them to be? Sadly, no. The 2015 marriage equality decision in Obergefell v. Hodges hasn’t stopped some courts and policymakers from trying to diminish the impact of that case, often by trying to fence the nonbiological parent off from any children the couple might have. The situation is sadder—and unforgiveable—when gay and lesbian former spouses try to exploit these outdated views against each other. A case currently before the Mississippi Supreme Court is the latest example of this damnable tactic, which diminishes every nontraditional family—straight and gay alike.
First, a little background: Before gay and lesbian couples could marry, their relationships to any children they raised were legally tenuous—especially for the nonbiological parent. Married couples were presumed to be the legal parents of any children born during the marriage, so same-sex couples faced a double whammy. First, without marriage, it was often difficult or impossible for the nonbio parent to gain parenting rights. That’s because, in many states, the nonbiological parent couldn’t adopt the couple’s child. Second, parent-child bonds were too often tragically sundered when the couple split up because many state courts held that the nonbio partner had no legal rights to the child. Although some courts developed theories, such as de facto parenting (which is just what it sounds like), to protect children’s interests by allowing the exiled ex some contact with the child, the law was wobbly and inconsistent.
Once marriage equality was achieved, it was reasonable to think that this terrible situation would quickly disappear. The law presumes that a child born during a marriage is the child of both the mother who gives birth and the person to whom she’s married. Many courts have decided that this presumption of paternity can easily be applied to a same-sex couple even if the pater is, in a lesbian couple, a mater. (It’s a bit more complicated, but the presumption can also work with a gay male couple.) Marriage equality should have taken care of both of the obstacles gay and lesbian couples have faced: singleness itself, and, as a consequence, the problems with adoption.
It hasn’t always worked that way, though, because courts and even bureaucrats in some states have resisted the implications of Obergefell. So, smart lawyers encourage the nonbiological parent even in married couples to adopt any children the couple might be raising—whether that child is adopted or conceived through assisted reproductive technologies. It’s also important to have the birth certificate reflect the names of the two married people who are going to be raising the child. Last year, the Supreme Court had to compel the Arkansas Department of Health to list both same-sex and married parents on their child’s birth certificate.
The latest challenge comes from Mississippi. At the end of November, the state Supreme Court heard arguments in Strickland v. Day, a case pitting two divorced women, Christian Strickland and Kimberly Day, against each other, with their child the worse for the dispute. The couple married in Massachusetts in 2009. In 2010, the couple decided to have a child, and it was decided that Day would be both the genetic and the gestational mother, and the father would be an anonymous sperm donor. Then, in 2011, Kimberly Day gave birth to a boy (known as “Z.S.” in the judicial proceedings). The women agreed that they were both to be full parents and acted that way from the beginning.
The couple split up in 2014, and at some point thereafter, Day moved to cut off Strickland’s access to their son. Strickland took her to court, where the trial judge tried to split the baby, as it were. He found that Strickland’s relationship with their son gave her a quasi-parental status (called in loco parentis), and therefore visitation rights—but no more. Day is the “real” parent, said the judge. Why? Because even though Z.S. was born during the marriage, he wasn’t of the marriage, since same-sex couples can’t conceive a child without a third party. The judge suggested that Strickland somehow find the anonymous sperm donor—the “natural father,” according to the judge—and have his rights terminated. (Even though the judge also noted that this mystery man “may never be known, and probably won’t be.”)
This “during the marriage”/“of the marriage” distinction isn’t a thing, though. If it were, then any kids born to married couples as the result of assisted reproductive technologies (whether sperm or egg donation, or possibly even in vitro fertilization) would be at risk of losing one of their parents. It’s not only gay- and lesbian-headed families that are made contingent by such inanity, which finds no support in the case law.
What will the Mississippi Supreme Court do? I wish I could write with certainty that the justices would simply overrule the lower court’s decision, allowing Strickland to enjoy full parental status in her relationship with Z.S. That’s probably what will happen, but two of the justices have gone on record with excoriating denouncements of the Obergefell decision. In 2015, the court upheld the issuance of a divorce decree to a lesbian couple over the strong objection of two of the justices who questioned the legitimacy of their marriage. Seizing on language from Chief Justice Roberts’ dissenting opinion in Obergefell, the Mississippi justices declared the decision “illegitimate” and therefore properly ignored it. This was predictable, because, as I wrote soon after the decision, the dissenting opinions “brim with the kind of intemperate language that seems calculated to foster disrespect for the rule of law.” So now Christina Strickland has to hope that these two radical justices don’t manage to cobble together a majority of four, using the marginally less crazy “during the marriage/of the marriage” contraption the trial judge made up.
Cases like this are a sharp reminder that our families are still less secure than traditional ones. That’s true for any family created through adoption or assisted-reproductive technologies—the judge’s decision in Strickland v. Day applies not only to same-sex couples but, in principle, to any couple needing outside assistance to create a family. It’s especially true for gay- and lesbian-headed families, though, because we’re also dealing with thick layers of discriminatory assumptions.
My family is as secure as it’s possible to be: We jointly adopted our children, and, though we couldn’t be married at the time, we are now. For a few reasons, there’s no realistic possibility that any third party could barge in and sunder our relationship to our daughters. For many thousands of queer families, though, the combination of biological preference and anti-LGBTQ prejudice means a family still under threat. Kimberly Day is now married to a man. Is that what triggered her attempt to exclude Christiana Strickland from her child’s life? Whatever the reason, it’s hard for our families to avoid worrying that some people still think our families are second-best placeholders until a traditional family appears. It’s up to courts and policymakers to underscore that our kids—and we—deserve better.