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Obergefell's Impact on Functional Families Catholic University Law Review Volume 66 Issue 2 Winter 2016 Article 8 3-23-2017 Obergefell’s Impact on Functional Families Raymond C. O'Brien Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Family Law Commons, Juvenile Law Commons, Law and Gender Commons, and the Law and Society Commons Recommended Citation Raymond C. O'Brien, Obergefell’s Impact on Functional Families, 66 Cath. U. L. Rev. 363 (2017). Available at: https://scholarship.law.edu/lawreview/vol66/iss2/8 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Obergefell’s Impact on Functional Families Cover Page Footnote Professor of Law, Columbus School of Law, The Catholic University of America; Visiting Professor of Law, Georgetown University Law Center. This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol66/iss2/8 OBERGEFELL’S IMPACT ON FUNCTIONAL FAMILIES Raymond C. O’Brien+ I. THE EVOLUTION OF THE FUNCTIONAL FAMILY .......................................... 371 A. Nonmarital Adult Couples .................................................................. 371 1. Marvin v. Marvin and Its Progeny............................................... 371 2. Adult Status Arrangements .......................................................... 374 B. Nonmarital Children .......................................................................... 379 1. Uniform Parentage Act Presumptions ......................................... 379 2. Assisted Reproductive Technology Parentage ............................. 381 3. De Facto, Contractual, and Equitable Parentage ....................... 385 II. THE EVOLUTION OF EQUITABLE PARENTAGE ........................................... 387 A. Fundamental Rights of Parents .......................................................... 387 1. The Pivotal Role of Troxel ........................................................... 387 2. Rebutting Troxel: The Equitable Remedies ................................. 393 a. Extraordinary Circumstances ............................................... 393 i. Child’s Detrimental Reliance ....................................... 394 ii. Transfer of Parental Status ......................................... 397 iii. Coparenting Agreements ........................................... 398 iv. Presumptive Parentage .............................................. 400 b. Psychological Parent: In Loco Parentis ............................... 402 c. De Facto Parent by Statute ................................................... 413 III. THE IMPACT OF OBERGEFELL: SAME-SEX MARRIAGE ............................. 420 A. Judicial Achievement.......................................................................... 420 B. Consequences of Marriage ................................................................. 427 1. Economic Benefits ........................................................................ 428 2. Parentage Benefits ....................................................................... 431 C. Will Marriage Make a Difference? .................................................... 437 IV. CONCLUSION ............................................................................................ 442 Throughout the 1960s and the 1970s many state and federal courts rendered judicial decisions that enhanced status protections for an array of racial minorities, women, putative fathers, and single adults.1 For the most part, these + Professor of Law, Columbus School of Law, The Catholic University of America; Visiting Professor of Law, Georgetown University Law Center. 1. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 454–55 (1972) (holding that a Massachusetts statute allowing married people to get contraceptives but prohibiting single people to get contraceptives was unconstitutional, in violation of the equal protection clause); Stanley v. Illinois, 405 U.S. 645, 657–59 (1972) (holding that the Due Process Clause required the state to provide all parents with a hearing on their parental fitness before removing children from their custody); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258–59 (1964) (finding that Congress had 363 364 Catholic University Law Review [Vol. 66:363 protections were based on revitalized notions of individual liberty, equal protection, or newly discovered privacy rights. The engines for change were discovered in constitutional guarantees, sometimes state but most often federal, such as guarantees under the Due Process Clause, the Equal Protection Clause, or a combination of both. A smattering of judicial decisions involved the discovered constitutional guarantee of privacy, based on a penumbra involving five separate and specific constitutional rights.2 And in a few instances, state courts utilized equitable remedies such as estoppel or quantum meruit to overturn long-standing public policies that had grown moribund with the evolution of a more pluralistic, mobile, and increasingly technological society. Courts during this period of time often admitted that their decisions were guided by public reality, not public policy. The reality about which courts wrote was the existence of many cohabiting nonmarital adults, prompting courts to provide protection for vulnerable adults and children so as to safeguard the reasonable expectations of one or both parties upon the cessation of the cohabitation. Overall, the second half of the twentieth century witnessed the growth of private ordering among competent and consenting adults. This development marked a departure from traditional “form family” structures premised upon marriage, statutory adoption, or consanguinity. Form families had been the bedrock beneath society, the structure that provided access to income, inheritance, and inclusivity in the past. Nonetheless, increasingly, adult same and opposite-sex partners were cohabiting, working toward common economic goals, and many were having children through intercourse or through scientific breakthroughs available through assisted reproductive technology. All of these cohabiting adult partners were aware of the advantages associated with form status arrangements, but they chose instead to create what would be termed “functional families,” relying upon their individuality and ingenuity instead of societal apparatus.3 The expansion of functional families complemented newly-invented media offerings such as music, television, and cinema. Media contributed to community building, complementing adult individual decision making. Pop culture opened horizons to what was possible and supported choices within an intangible community. Increasingly, the parameters of an adult were freed from parochial confines and exposed to a broader taste of an undiscovered society that offered more freedom of individual choice. In addition, decision freedom was enabled by enhanced employment opportunities, such as individual access to the authority to prohibit racial discrimination in public accommodations under the Commerce Clause). 2. See Roe v. Wade, 410 U.S. 113, 152 (1972) (“[T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”); Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965) (establishing the existence of constitutional “zones of privacy” evinced by the “specific guarantees in the bill of rights”). 3. See J. Herbie Difonzo & Ruth C. Stern, The Winding Road from Form to Function: A Brief History of Contemporary Marriage, 21 J. AM. ACAD. MATRIM. LAW. 1, 2, 25–28 (2008). 2016] Obergefell’s Impact on Functional Families 365 birth control, scientific assisted reproductive technology, acceptability of third- party child care, and enhanced medical care. Freed of societal restraints, adults in American society asked themselves, “Why not?” and embarked on quests to find fulfillment in relationships that functioned well for themselves. Courts and a few legislatures struggled to establish restitutive structures when functional relationships became dysfunctional, resulting in financial disparity between the former partners. Stripped of the familiar status entitlements of statutory or common law marriage, courts struggled to establish equitable enforcement of individualized oral arrangements through slippery toeholds such as equitable estoppel, promissory estoppel, or quantum meruit. Precarious at best, functional families most often resulted from oral agreements between the parties. Yet to be enforceable in law, these agreements had to reach the level of clear and convincing evidence.4 Only the most prudent and prescient of couples could meet this evidentiary test. Courts, and perhaps individuals involved, viewed financial loss as commensurate with the vagaries of functional families, any economic risk voluntarily assumed by an adult partner at the start or during the relationship. But this was not always the case, and the burden was especially difficult for same-sex functional families. Their employers, localities, and state of residence increasingly struggled with the disparate treatment afforded to same-sex couples in terms of public perception, medical insurance, bereavement exemptions, and housing accommodations. Same-sex adults entered into
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