U.S. Supreme Court Affirms that Obergell Requires Placing Married Same-Sex Parents on Birth Certificates

Maintaining a tradition of issuing cases impacting the LGBTQ community on June 26th, the U.S. Supreme Court issued its decision in Pavan v. Smith, upholding the requirement outlined in Obergefell (the case that banned marriage discrimination based on sexual orientation/gender) that birth and death certificates reflect the same-sex spouse.

The decision was a per curiam opinion, which means it was a decision of the court. Per curiam opinions are rare, but this is the second time since Obergrefell that the court has issued a per curiam opinion with regard to marriage and families. (See U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption for a discussion of the other case).

The Paven case involved two lesbian couples in Arkansas. Both couples were married in another state and then had children in Arkansas, using anonymous sperm donations. Both parents filled out the paperwork to have their spouse listed as the other parent on the birth certificate. In both cases the Arkansas Department of Health issued certificates bearing only the birth mother’s name. The Arkansas Department of Health relied on the Arkansas law that stated that if the mother was married at the time of either conception or birth that the name of her husband shall be entered on the certificate as the father of the child.

The Arkansas Supreme Court upheld the gendered nature of the law as not violating Obergefell, asserting that the statute centered on the biological relationships, not on the marital relationships, and so it does not run afoul of Obergefell.  The U.S. Supreme Court disagreed finding that it denied marriage same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

The per curiam decision goes on to say that Obergefell proscribes such disparate treatment and the Obergefell explicitly referenced birth and death certificates. The court also noted that the statute is not about biology as married men are required to be on birth certificates of the children born of the marriage when ART is used. The decision of the court also noted that the adoption statute allows for birth certificates to be amended to reflect the adoptive, nonbiological parents, to be put on the birth certificate.

Despite being a per curiam decision, Gorsuch, Thomas and Alito dissented. Gorsuch wrote, that he did not believe this case met the threshold of a per curiam decision because he did not think the issue was settled and stable, which are the types of case per curiam decisions are supposed to be reserved for.

This dissent repeated the state’s argument that the per curiam decision noted was false on its face – that biology was the reason for the gendered nature of the birth certificate law. The dissent comes up with the term, “biology based birth registration regime” perpetuating the facially false argument that the gendered nature of marriage and the birth certificate was related to biology. The per curiam opinion specifically discussed this, noting that when an opposite sex married couple uses ART to conceive the husband must be put on the birth certificate and that the adoption law places adopted parents on the birth certificate, so a birth certificate is clearly not about biological connections).

The dissent makes another argument that makes no sense when it stated,  the “State agrees, the female spouse of the birth mother must be listed on birth certificates too.” This whole case is based on the refusal to allow same-sex married spouses on the birth certificate, so it is unclear how the Gorsuch could make this claim. The only way that this claim would be accurate, would be if the state conceded the same-sex spouse should be on the birth certificate, which would make the biological argument pointless.

The dissent does what the conservative agenda often tries to do -create a path to achieving its desired goal to discriminate against the LGBTQ community. The dissent essentially invites states to create “biology based birth registration regimes.” This is clearly an anti-LGBTQ stance, but it is more than that it’s a push towards the idea of biological imparity connected with parenting. The impact of this approach would impact far more people than the LGBTQ community. Assisted reproduction is widely used in the U.S. by opposite-sex married couples, single women, and same-sex couples. According to a February 2014 CNN article, 61,740 babies born using some form of assisted reproduction technology in 2012. A 2015 Huffington Post article notes that there is a guestimate that is 15 years old that between 30,000 and 60,000 children are conceived using sperm or egg donors (the article also criticizes the lack of tracking of this information).

It is also important to connect this case to the other recent per curiam adoption case that said Alabama could not invalidate a Georgia adoption. One of the judges at the Alabama Supreme Court rallied on about the idea that adoption is merely an administrative tool and doesn’t create real parentage and the state can revoke parentage on a whim without meeting the constitutional requirements for biological (“real”) parents. This is perhaps one of the reasons, Chief Justice Roberts, who is an adoptive parent, did not join in the dissent. Adoptive parents understand biology is not the only way people become parents and biology does not somehow make more of a parent.

What does this decision mean for parents using Assisted Reproduction Technology, especially same-sex parents?

This decision makes it clear that if a state has provision that requires a married spouse to be placed on a birth certificate, any effort to restrict this to opposite sex couples will be deemed unconstitutional. The per curiam nature of the decision is an effort to send a strong message – states cannot rely on gendered laws to limit the benefits and responsibilities allocated through marriage. Arguably this would also apply to parentage statutes, statutes that typically say that a child born of a marriage is presumed the legal child of both parents in the marriage.

Nevertheless, the dissent, the long-term hostility to the LGBTQ community and families, and the backlash to marriage equality make it imperative for same-sex couples (and arguably any parent conceiving through ART where they may not be the biological parent to their child – including birth mothers who use an egg donor) to affirm their parentage through a court order. It is clear that there will be continued challenges to parentage and there are still courts and justices open to arguments that same-sex parents aren’t real parents, and more than that, that nonbiological parents are not real parents.

There are two types of court orders, the one that many advocates believe provide the strongest protection are second parent adoptions (more commonly referred to as stepparent adoptions). This is a process where the nonbiological parent would adopt their child. Adoptions are recognized nationally and internationally.

The other option is an order affirming parentage (these have various names). It is an court order that affirms that that the intended parents are the legal parents and would be entitled to enforcement under Full Faith and Credit. States that have adopted a version of the Uniform Parentage Act (UPA) may also have an ability to use the holding out provision for parents who were not married at the time of conception or birth and who have not done an adoption. Provided that the nonbiological parent has met the requirements of the state statute for the holding out provision, they could file a parentage action and affirm their parentage.

JELS has successfully done parentage confirmations in Washington. Every situation is unique and there may be some situations that a parentage confirmation would not be appropriate (i.e., if a child was conceived through intercourse, even if all parties intended the child to be the child of the married couple).  I like parentage confirmations because it does not required either parent to allege that they are not a parent and therefore must adopt their child to become a parent. It should also be less expensive to do a parentage confirmation than an adoption and it is relatively quick. You won’t get the same feel good ceremony many people experience when they do an adoption, it’s more like a somewhat administrative process to affirm your parentage.

LGBTQ Rights Going Forward – Possible Impact of a Trump Presidency

During this campaign cycle, we saw the backlash to broad spectrum of efforts to obtain full equality. While Obama was not perfect, under his administration, movements of the people flourished. Immigrant communities organized, raised awareness, and applied pressure achieving at least a few minor gains, like the DREAM Act. Black Lives Matter flourished. While the president was not as forceful as I would have liked, he did defend the movement and under his leadership investigations occurred into police accountability/abuse and reports were issued that have the power to create some systemic change. He raised awareness of about the abuse of our system of incarceration and took steps available on the federal level.

The LGBTQ movement was also able to thrive under Obama. He appointed several members of our LGBTQ community into key leadership positions. Questions about fair housing, included questions about whether LGBTQ people were discriminated against. He also took a position that the ban on marriage discrimination was wrong. When the Supreme Court finally remedied the long standing practice of denying marriage to same-sex couples, the Obama administration went to work on finding all of the places where the federal government was involved and removing any barriers to equality.

It is hard to believe sometimes that Lawrence v. Texas was decided in 2003. How on earth was it only about 13 years ago that some states still outlawed homosexual conduct (i.e., sodomy)?  When the barriers finally began to fall, full equality felt like it came at a rapid pace. This is why, despite all the growth we have had, in many ways the changing administration doesn’t change the longstanding advice for the LGBTQ community.

The people dedicated to these issues have issued FAQs and information. Lambda Legal has Post-Election Facts – Covering marriage (unlikely to see much change), trans youth, conversion therapy, hospital visitation, HIV and concerns about the repeal of Obamacare and hate crimes. NCLR has several blogs, Shannon Minter, their super smart legal director has this to say about the unlikely outcome of repealing marriage. The NCLR is also one of the best resources out there to understand state-by-state differences. The Transgender Law Center issued this Statement on the election.

In addition to these thoughts, I will add, no president, congress, or court has ever simply given the LGBTQ people rights. It has been a hard fought battle, that was based in some incredible activism changing hearts and minds.

It also doesn’t hurt our cause that LGBTQ people are everywhere. Race, religion, ethnicity, and many other identities find people still segregated, largely due to historic discrimination issues, but also because sometimes it is easier to live in communities where you see yourself, you know you are less likely to be targeted for harassment and violence, you know when you go to the store they will have beauty products for your hair, or a grocery store that will meet your kosher needs. This segregation doesn’t occur in the same way for the LGBTQ people, while as grown-ups we may seek out gayborhoods, we are raised Muslim, Evangelical, atheist, Jewish and every other religion. We are Black, Asian, Latinx, Native American/First Nations/Indigenous, White and every other race and combination of race and/or ethnicity. We come from conservative families to progressive to anarchistic families. It is simply impossible to shield yourself from loving someone, a son, daughter, auntie, uncle, parent, who may come out as LGBTQ and the more accepting world expanded the safety area for people to come out. It is impossible to exist in any identity without also having LGBTQ people as a part of that identity.

However, this change is recent. We have not lived in a post-Obergefell (Supreme Court case affirming the dignity of same-sex marriages and holding discriminating against same-sex people in marriage liscenses violated our constitution) world long enough to have let our guard down. Attorneys advising same-sex clients were still saying, get your documents and don’t delay.

What kind of documents should you get?

Transgender people should make sure their identity documents match their gender identity (to the extent possible as they predominately exist in the male/female binary). One place to turn for information on this available at the Transgender Law Center Identity Document Resources– it’s California focused, but it does have information about federal changes. Looking at the California info may also help you figure out how to look for the same in your own state.

Protect your relationship to your children. If you have read any other blogs I have written or seem me present, you have heard me say marriage equality does not equal parentage equalityGet a court order affirming parents are parents. This can be done a couple of ways. Many people are most comfortable with adoptions. There is case law to support that court orders adjudicating parentage will be given full faith and credit, this is essentially an order of parentage, similar to what has been historically called paternity. In Washington State, our law regarding determining parentage is gender neutral (Uniform Parentage Act / UPA, which despite its name is not uniform and many states haven’t adopted it, or they tweak it. Washington tweaked our UPA to be clear it included same-sex couples).

If you haven’t done this, and your family is splitting up, you can make sure that your parenting plan has a finding that you are the legal parents. Parenting plans have extra security under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA – and unlike the UPA it actually is uniform). There is also something called the Hague convention and signatory countries (countries who have agreed to follow the Hague rules) will also help with the enforcement of parenting plans). There are some concerns with something like this and possible rights and benefits that could flow to your child upon your death, so you should definitely explore other possibilities.

All LGBTQ couples should have estate planning documents – which a way of making you sound wealthy, but really means that you should have a power of attorney, medical directives, a will. These kind of documents are fairly easy to obtain. The reason for having them is mainly to have an additional weapon against discriminatory individuals at important times. These are also the kinds of documents people absolutely needed when there was no marriage. It was the only way that same-sex couples could link themselves in the eyes of the state.

Pay Attention – More Advice Will Come Out Once Trump is in Office with a Republican Congress

There is so much more we will learn in the coming months and years. The hateful rhetoric connected to this election has all of us justifiably nervous. The thing that helps keep me from panicking is remember that our government was set up to thwart major sweeping changes. It took a long time to get where we are and it will not be unwound easily.

Perhaps it means as states that are happy with having the marriage issue decided can try to clean up their statutes that banned marriage and explicitly say that same-sex marriage is allowed in their state (this would mean absent an amendment to our constitution marriages would still have state protection). While states are at it, they should make their laws regarding parentage and have two things clear (1) that families can affirm their parentage if they meet the terms of the UPA (which is basically that you consented to assisted reproduction while married or that you have lived with the child since birth for several years and held the child out as your own) and that the provision apply on a gender neutral basis, i.e., biology is not the only factor in determining parentage.

Also, be sure to reach out when you experience discrimination. The national organizations like Lambda Legal, NCLR, Transgender Law Center, and the Southern Poverty Law Center, need to know what’s happening in people’s lives to respond to it. Also, let your state organizations know. In Washington, groups like Legal Voice and the ACLU have been spearheading many efforts. Our Attorney General created a Civil Rights Division. The QLaw Foundation has a legal clinic that provides free legal advice on civil question (i.e., non-criminal).  Gender Justice League has resources on health insurance issues (among many other things). Ingersoll Gender Center has support groups, resources, and information about providers. There are also many other groups that focus on intersectionality: Entre Hermanos, Trikone NW, NQAPIA, and many more.

I’ll keep trying to update about what’s happening in Washington as several interesting cases concerning LGBTQ people are before our state Supreme Court this week.

Parting thought: Please take care of yourself, legally, socially, and emotionally.

Alabama Invalidated a Georgia Second Parent Adoption

Updates on this case:

On March 7, 2016, the U.S. Supreme Court reversed the Alabama Court holding that Alabama cannot invalidate the Georgia adoption under the Full Faith and Credit Clause. See blog post here for more discussion. 

On 11/16/15 this case was appealed to the U.S. Supreme Court. More about the appeal is available at the NCLR website – link

One thing we know is that marriage equality does not equal parentage equality. We also know that while the world has seen a significant amount of change in hostile treatment of same-sex couples towards more acceptance, same-sex families still face a much greater threat to their security than their opposite-sex peers. This is particularly true when one parent in a same-sex relationship decides to use homophobia as a tool to deny another parent their rights as a parent. A recent case demonstrates how that can be done with a possible harmful impact that may resonate well outside their individual custody battle.

A quick summary of the facts is important to understand how the case is not necessarily applicable in the way that it might seem at the outset of just hearing that an Alabama Court invalidated a Georgia adoption. In In re: E.L. v. V.L., Jefferson Family Court, CS-13-719; Court of Civil Appeals, 2130683, the couple lived in Alabama. They spent just enough time in Georgia to be able to technically establish residency (and possibly not even that much, appellate court decisions are not detailed in the facts and it appears they may not have spent a lot of time in the state, simply leased a space for the required amount of time).

The couple was together for approximately 16 years and E.L. gave birth to three kids (one set of twins) using assisted-reproductive technology in 2002 and 2004. It was undisputed that V.L. acted as a parent to the twins and they couple sought to legally formalize V.L. as a parent and in 2007 they did a second parent adoption in Georgia after doing research and believing it would be granted in Georgia.

Couple breaks up, biomom apparently doesn’t let nonbiomom see the children. Nonbiomom petitions the Jefferson Circuit Court (Alabama) to recognize her constitutional right to parent and register the Georgia adoption judgment and award her some custody or visitation with the children. Biomom moved to dismiss nonbiomom’s case. On April 3, 2014 (three years after the couple separated and the kids would be 10 and 12), nonbio mom was awarded scheduled visitation. A couple weeks later, the court issued an order that all other relief was denied and the case considered closed. Biomom promptly moved the court to alter, amend, or vacate its judgment (denied on procedural grounds). Biomom appealed the decision.

At the appellate level she argued that:

  1. the Jefferson Family Court lacked subject-matter jurisdiction to rule on V.L.’s petition;
  2. the Georgia court lacked subject-matter jurisdiction to enter the Georgia judgment;
  3. the Jefferson Family Court should have refused to recognize and to enforce the Georgia judgment for public policy reasons; and
  4. the Jefferson Family Court denied her due process inasmuch as it awarded V.L. visitation rights without holding an evidentiary hearing at which E.L. could be heard.

On February 27, 2015, the Court of Civil Appeals released its opinion rejecting the frist three of the arguments, but holding that the Jefferson Family Court had erred by awarding V.L. visitation without conducting an evidentiary hearing. The judgment was reversed and remanded for the Jefferson Family Court to conduct an evidentiary hearing before deciding the visitation issue.

The Alabama Supreme Court noted that implicit in the court of appeal’s opinion was an implicitly finding in the judgment of the Jefferson Family Court that the Georgia judgment was valid and subject to enforcement in Alabama.

On March 11, 2015, biomom appealed the decision to the extent of the Court of Civil Appeals’ affirmance of the judgment of the Jefferson Family Court to the extent that judgment recognized and enforced the Georgia judgment. The Alabama Supreme Court granted the petition. There were several briefs in the case, including that of GAL, the Academy of Adoption Attorneys, and the Georgia Council of Adoption Lawyers.

The court claimed that in its decision, it was not reviewing the legal merits of the Georgia judgment, because the court is prohibited from making any inquiry into the merits of the Georgia Judgment by the Full Faith and Credit Clause of the Constitution and that the validity of a foreign judgment is supposed to be determined by the state in which it was rendered.

Review is limited to whether the rendering court had jurisdiction to enter the judgment sought to be domesticated – essentially a subject matter jurisdiction issue, which is one of the few grounds upon which a judgment may be challenged after that judgment has become final and any available appellate remedies exhausted.

Biomom argued that the Georgia judgment was unenforceable in Alabama because the Georgia court lacked subject-matter jurisdiction because (1) Georgia does not provide for so-called “second parent adoptions” and (2) that V.L. was not a bona fide resident of Georgia at the time of the adoption. Biomom also argued that even if there was subject matter jurisdiction, the Alabama court should not recognize the order because it would be contrary to Alabama public policy.

The Alabama Supreme Court said the only way that they could not enforce the judgment was to find there was no subject matter jurisdiction. The court rejected the claim that Georgia law prohibits any judicial challenge to an adoption more than six months after the date of entry of the decree. The court discussed subject matter jurisidiction and wavier issues, noting that the equitable defenses of laches and estoppel may prevent a party from complaining of a lack of subject matter jurisdiction in Georgia and agreed that Georgia generally will not accept a subject matter jurisdiction challenge to its adoptions. Nonbio mom’s argument is that it doesn’t apply in second parent adoptions because the adoption statute requires termination of each parent and the Georgia court did not explicitly follow this requirement.

The Alabama Court sites the dissent in a refusal of the Georgia court to hear a motion to vacate a same-sex adoption in Georgia and finds that the Georgia court would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply with  § 19-8-18(b) (termination of the biomom’s rights as a parent).

The Alabama court then reviewed the Georgia law and found that the Georgia law does not allow for a non-spouse to adopt a child without first terminating the parental rights of the current parents. Since biomom’s rights were not terminated, the Georgia court erred in granting the adoption of nonbio mom. The Georgia adoption judgment is void and full faith and credit is not required.

One distinction that was made in this case is the difference between a second parent adoption and a stepparent adoption. A Georgia stepparent adoption would presumably would have been upheld in Alabama, but the court noted their was no question the parties were not married (omitting the reality that they couldn’t marry in most states) and the second parent adoption of a nonspouse was what the court rejected.

Concurrence  – One justice concurred to say that adoption is not a statutory right and there exists no “fundamental right to adopt a child.” Further, the state has a legitimate interest in encouraging that children be adopted into the optimal family structure, i.e., one with both a father and a mother. (As far as I can tell, no one joined this justice in this concurrence).

Dissent – The dissent argues that the majority reached the merits of the decision and that is not allowed – that only Georgia could decide if it’s adoption was valid. (As far as I can tell, no one joined the dissent).

Impact of this decision 

This decision could impact any second-parent adoption in Alabama from another state where the non-Alabama statutory language is ambiguous enough as to allow Alabama to interpret it to require the termination of the biological parent’s parental rights. It’s a relatively small subset of people.

However, at the time that I am writing this, according to the National Center for Lesbian Rights, who keeps the best records I’ve found on these issues, only 14 states explicitly allow same-sex couples to second parent adopt. At least, thirteen states, including Georgia and Washington do not prohibit second parent adoptions and they have been performed in some counties. This means anyone from these 13 states, and any place where the statute is not unequivocal in it’s allowance of a second parent or stepparent adoption and the lack of a need to terminate at least one parent’s rights could be invalidated by Alabama (or another state who follows Alabama’s lead).

It is a troubling decision because adoptions have long been believed to be orders that were believed a court would not terminate. Sure there’s the full faith and credit clause and that’s a strong legal argument all by itself, but there is also the best interest of the child. It’s a fairly universal belief that excluding a parent from participating in the life a child is detrimental to the child. Even parents who have done awful things to their children are typically allowed supervised visits with their children.

The over-emphasis on biology makes the concurrence so troubling. The ability to adopt may not be a fundamental right, but once an adoption has occurred a parent is a parent. Adoptive parents are just as much of a parent as a biological parent in the eyes of the law. If the concurrence were to become the law of the land this view of adoption would destabilize all adoptive families, regardless of whether the parents are opposite-sex or same-sex.

Does this mean nonbiological parents shouldn’t adopt? 

No. It is possible this case (or a similar case down the road) could get appealed to the U.S. Supreme Court. Given that Chief Justice Roberts is an adoptive parent, I think he will find this decision repugnant and vote with the “liberal” arm of the court and overturn the decision. Even if this case does not go forward to the U.S. Supreme Court, hopefully it will be an anomaly. Adoptions are intentional acts by both parents. It speaks volumes about the intent of each parent and even if the adoptions isn’t allowed, a nonbioparent could argue in the alternative that they are a de facto or psychological parent (in states that have those doctrines) and the adoption decree could be evidence of the intent of the family to be a family.

This case also makes a distinction between stepparent and second parent adoptions. It is unpleasant to think that a parent who is there in the whole process of assisted reproduction and pregnancy or surrogacy and there in the child’s life is a “stepparent”, but if that is the hook that prevents a state like Alabama from invalidating a parent-child relationship, then so be it.

The Ugly Side of People

There are an unfortunate number of family law cases where one parent goes to great lengths to prevent the other parent from having access to the child(ren). Unfortunately the LGBTQ community is no exception. Even more unfortunate is that in the LGBTQ community biological parents also use homophobia or transphobia to assist in their battle to exclude the other parent. Chiefly the bioparent who now says they aren’t LGBTQ and doesn’t want their child to be around someone who is LGBTQ. (Side note in this case it isn’t clear that biomom made any statements that she was no longer LGBTQ, but given the public policy argument reference in the decision, it seems likely that is the case.)

This case will go down in my memory of one of the worst offenders along with Miller v. Jenkins (a 2006 case with proceedings in Vermont and Virginia where the bio mom used the court system to try and take her child a way from the other parent and when that failed she kdnapped the child and took the child to Central America), and In re L.B. (a 2005 case in Washington that created our de facto parentage doctrine – where a lesbian couple used a known sperm donor and when the couple split biomom married the sperm donor and tried to claim they were an in tact parent and nonbiomom should not be able to have residential time with the child).

This decision would not even exist but for a parent who was in a 16 year relationship with their co-parent trying to stop all legally-required contact with their three kids. While I believe the court should not have decided the case in the way it decided the case. I also believe that biomom should not have made these legal arguments. The trauma and damage that occurs in the lives of these children as a result of this huge legal battle to deny them one of the parents they’ve known their entire lives is tragic and completely unnecessary. This couple went to great lengths and expense to make sure that they were both parents of their children and now one parent is trying to undo all of that at great cost (monetary and emotional) to the whole family.