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Marriage Equality and the New Parenthood

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Marriage Equality and the New Parenthood VOLUME 129 MARCH 2016 NUMBER 5 HARVARD LAW REVIEW © 2016 by The HarvardLaw Review Association ARTICLE MARRIAGE EQUALITY AND THE NEW PARENTHOOD Douglas Nejaime CONTENTS IN T R O D U C T IO N .......................................................................................................................... 1187 I. FAMILY LAW REVOLUTIONS: NONMARITAL AND NONBIOLOGICAL PA R E N T IN G ............................................................................................................................. 1193 A. N onm arital, B iological Parenthood................................................................................1193 B. Marital, Nonbiological Parenthood................................................................................ 1195 II. LGBT PARENTING WORK IN CALIFORNIA, 1984-2005 ........................................ I196 A. I984-Ip98: MaritalParenthood, Biological Parenthood, and the Precarious P osition of Sam e-Sex Couples.........................................................................................1200 i. Early Efforts on Behalf of Nonbiological Parents in Same-Sex Couples..............1200 2. Different-Sex Married Couples and Intentional Parenthood..................................1208 B. 199-2003: Securing Rights for Nonmarital, Nonbiological Parents.........................1212 i. Intentional Parenthood and Same-Sex Couples Under the UPA............................1213 2. Functional Parenthood and Nonmarital, Nonbiological Parents Under th e U PA ......................................................................................................................... 1 2 15 3. Cem enting Second-Parent Adoption ......................................................................... 1219 C. 2004-2005: Statewide Recognition of Intentional and Functional Parenthood Under the UPA for Sam e-Sex Couples..........................................................................1222 i. "C o-M atern ity ............................................................................................................. 1 222 2. "H old in g Ou t...............................................................................................................1226 III. MARRIAGE (EQUALITY) AND PARENTHOOD ................................................................ 1230 A . H ow M arriageM atters..................................................................................................... 1231 B . Through Marriage E quality............................................................................................. 1236 IV. MARITAL PARENTHOOD AFTER MARRIAGE EQUALITY ........................................... 1240 V. NONMARITAL PARENTHOOD AFTER MARRIAGE EQUALITY...................................1249 A. Same-Sex Family Formation and Nonmarital Parenthood........................................1250 B. Blurring Marriage and N onmarriage.............................................................................1259 CO N C L U SIO N ............................................................................................................................... 1265 I185 MARRIAGE EQUALITY AND THE NEW PARENTHOOD Douglas Nejaime* Now that same-sex couples have a nationwide right to marry, a new generation of questions about the legal regulation of the family is emerging. While integral to the future of same-sex family formation, these questions also implicate the family law regime more generally. By integrating developments in family law governing different-sex and same-sex couples, biological and nonbiological parents, and marital and nonmarital families, this Article shows how marriage equality was enabled by - and in turn enables - significant shifts in the law's understanding of parenthood. Using a case study of legal efforts in Californiafrom the mid-19sos to the mid-2000S, this Article recovers the role of marriage in early LGBT parenting litigation on behalf of unmarried parents. It shows how that litigation reshaped norms governing marriageand parenthood. In the late twentieth century, the law increasingly recognized (pre- sumptively heterosexual) parents on grounds independent of marriage and biology. As the law protected the rights of unmarried, biologicalfathers, it also began to recognize married, nonbiological parents, largely in response to families formed through assisted reproductive technologies (ART) and to stepparent families. LGBT advocates leveraged both developments to elaborate a new model of parenthood capable of recognizing their constituents' nonmarital, nonbiological parent-child relationships. Eschewing formal parentage markers - including biology, gender, and marital status - advocates instead built parentage around intentional and functional relationships. This new model of parenthood is embedded in marriage equality and is extended through a family law regime in which same-sex couples can marry. By uncovering these transformative aspects of marriage equality, this Article challenges some of the historical, normative, and predictive dimensions of prominent critiques of same-sex marriage as conservative and assimilationist. More broadly, it reveals how marriage equality can facilitate the expansion of intentional and functional parenthood for all families, and * Professor of Law, UCLA School of Law; Faculty Director, The Williams Institute. I re- ceived generous research support from both the UCLA School of Law and the University of Cali- fornia, Irvine School of Law. For helpful comments, I thank Tendayi Achiume, Susan Appleton, Carlos Ball, Noa Ben-Asher, Grace Blumberg, Courtney Cahill, Ann Carlson, Liz Chiarello, Brietta Clark, Glenn Cohen, Beth Colgan, Kristin Collins, Scott Cummings, Jon Davidson, Deb- bie Dinner, Martha Ertman, Dov Fox, Cary Franklin, Marie-Am6lie George, Cynthia Godsoe, Laura G6mez, Tiffany Graham, Joan Hollinger, Courtney Joslin, Jennifer Levi, Justin Levitt, Kaipo Matsumura, Serena Mayeri, Linda McClain, Jon Michaels, Shannon Minter, Jennifer Mnookin, Rachel Moran, Steve Munzer, Melissa Murray, Yxta Murray, Sasha Natapoff, Jason Oh, Nancy Polikoff, Elizabeth Pollman, Laura Rosenbury, Jennifer Rothman, Joanna Schwartz, Elizabeth Scott, Seana Shiffrin, Reva Siegel, Katharine Silbaugh, Ed Stein, Kathy Trisolini, Mi- chael Waterstone, Kimberly West-Faulcon, Deborah Widiss, Jordan Woods, and Noah Zatz; par- ticipants at faculty workshops at UCLA, the University of Miami, and Washington University in St. Louis; and participants at Boston University's Gender Law and Policy Colloquium, the Uni- versity of Colorado's Rothberger Conference, the 2015 Baby Markets Roundtable at Harvard Law School, the 2014 Family Law Scholars and Teachers Conference at the University of Minne- sota, and the 2014 Law and Society Association Annual Meeting. I am most grateful to the law- yers who donated their time and supplied their personal files. For research assistance, I thank Justin Aufderhar, Ian Lumiere, Justin O'Neill, and Seth Williams, and for research support I thank the law librarians at UC Irvine and UCLA. I also thank the editors of the Harvard Law Review. II86 20I6] MARRIAGE EQUALITY AND THE NEW PARENTHOOD I1187 thereby can continue to reduce distinctions between same-sex and different-sex couples, biological and nonbiological parents, and perhaps even marital and nonmaritalfamilies. INTRODUCTION In Obergefell v. Hodges,' the U.S. Supreme Court extended the right to marry to same-sex couples nationwide. 2 For many supporters of lesbian, gay, bisexual, and transgender (LGBT)3 rights, same-sex mar- riage does not mark a significant change in our legal understanding of the family.4 In fact, some scholars criticize the same-sex marriage campaign for conforming to, rather than unsettling, dominant concep- tions of the family.5 But in analyzing marriage equality's antecedents and identifying a new generation of issues emerging in marriage equal- ity's wake, this Article provides a different perspective. By integrating developments in family law governing different-sex and same-sex couples, biological and nonbiological parents, and mari- tal and nonmarital families, this Article shows how marriage equality was enabled by - and in turn enables - significant shifts in the law's understanding of parenthood. More specifically, it argues that the claim to marriage both seized on and extended the very model of parenthood forged by LGBT advocates in earlier work on behalf of unmarried parents. That model of parenthood is premised on inten- tional and functional, rather than biological and gendered, concepts of parentage. In this way, rather than affirming traditional norms gov- erning the family, marriage equality and the model of parenthood it signals are transforming parenthood, marriage, and the relationship between them - for all families. 6 1 '35 S. Ct. 2584 (2015). 2 See id. at 2602, 2608. 3 I use the term LGBT, the contemporary designation, to reflect the broader goals and effects of the efforts I describe, but I recognize that the developments I cover are focused on sexual orien- tation and not gender identity. 4 Indeed, opponents of same-sex marriage have been those most likely to argue that same-sex couples are "redefining marriage." See, e.g., SHERIF GIRGIS, RYAN T. ANDERSON & ROBERT P. GEORGE, WHAT IS MARRIAGE? 7-8 (2012); Matthew J. Franck, The Beauty of the Country of Marriage, PUB. DISCOURSE (Oct. 7, 2014), http://www.thepublicdiscourse.com/20I4/IO/I3869 [http://perma.cc/3MRZ-XgW2]. See infra section III.A, pp. 1231-36. 6 Of course, family law includes both
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