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The Respect for Marriage Act won’t fully protect same-sex parents

If the Supreme Court overturns Obergefell, officials in some states could again refuse to recognize the parental authority of two moms or two dads

(Brendan Smialowski/Getty Images/Bloomberg News)

This morning, the House passed the Respect for Marriage Act (RFMA), which the Senate passed last week and which President Biden has promised to sign. Under the RFMA, the federal government would recognize interracial and same-sex marriages and would require states to recognize such marriages from other states. While the Supreme Court mandated such recognition, Justice Clarence Thomas has suggested that the court should reverse its decision on marriage equality.

But while the court’s 2015 Obergefell v. Hodges decision requires states to offer same-sex couples all of marriage’s benefits and protections, the RFMA cannot, since the U.S. Constitution lets each state decide its own marriage rules. That means each state’s legislature and judges will decide what such marriages involve. More than 30 states still have bans on recognizing same-sex marriages. If Obergefell falls, many will go into effect, leaving same-sex couples in legally precarious positions.

The House on Dec. 8 passed legislation granting protections to same-sex and interracial couples and clearing the way for President Biden’s signature. (Video: The Washington Post)

How will this uncertainty affect gay and lesbian parents? We can understand this by looking at how they managed before the Obergefell ruling. In our research, Judith Raiskin and I examined how same-sex couples handled parenting despite what we call “legal status ambiguity.”

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Parenting amid uncertainty

“Legal status ambiguity” can occur when groups face both high social contestation and complicated legal frameworks. State variation in marriage policies combined with public anti-gay sentiment made it harder for same-sex parents to care for their children. This especially mattered in venues such as schools, hospitals or airports, where staff can thwart parenting efforts.

For parents to pick up their kids from school, take them to the hospital or travel out of state, they must be perceived as parents by individuals in charge. Heterosexual couples are typically presumed to be parents. Gay and lesbian parents often are not, especially when LGBTQ rights are contested, and must prove their parenthood. For instance, one two-mom family recalled an airport official questioning them at length in front of their child about their parental status before allowing them to board. “You are her mother; yet, she’s her mother too?” asked the official, leaving the child fearful about future travel.

In 2015, when Pam Yorksmith (an Obergefell co-plaintiff) rushed her young son to a Cincinnati emergency room, she too faced challenges to her parental status, which delayed her son’s treatment. Yorksmith and her wife were legally married in California. But in the Ohio hospital, staff refused to treat her son until they reached Yorksmith’s wife, the birth mother, who was at home caring for their younger child.

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Proving parenthood

When same-sex couples regularly contend with challenges to their parental status, documents like birth certificates listing both parents become the passports for parenthood. The same-sex couples we interviewed had several copies of their children’s birth certificates or legal guardianship papers around the house, in their wallets or on their phones. Stories like Yorksmith’s scared parents into hypervigilance — making birth certificates as basic a necessity as diapers and Cheerios.

But birth certificates listing two parents of the same sex can be difficult to obtain when state policies are in flux. In the early days after Obergefell, states with anti-gay policies begrudgingly offered marriage licenses, but some refused to add the non-birth parent to birth certificates.

Obergefell neutralized this logic. In Pavan v. Smith in 2017, the Supreme Court clarified that, under Obergefell, all married same-sex parents are entitled to birth certificates listing both parents’ names. If same-sex couples lose Obergefell, they may lose access to these critical documents. While some will have the resources to have lawyers draft supplementary legal documents, these aren’t always respected.

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Can RFMA guarantee access to vital records?

Court rulings differentiate between a state’s constitutional requirement to “recognize” vs. “enforce” another state’s policies or rulings. For instance, in 2016, the Supreme Court overturned the Alabama Supreme Court’s refusal to recognize a Georgia-court-ordered two-mom adoption, citing the Constitution’s mandate that states give what the Constitution refers to as “full faith and credit” to out-of-state court rulings.

Yet in 2011, in Adar v. Smith, the Supreme Court had also let stand a U.S. Court of Appeals for the 5th Circuit ruling allowing the state of Louisiana to ignore a two-dad family’s request for an updated birth certificate for their adopted son born in Louisiana, after a New York court finalized both as legal co-parents. A Louisiana clerk rejected the request, reasoning that the state’s marriage ban protected the state from having to enforce New York’s order.

The 5th Circuit agreed, arguing that, although Louisiana courts are required to recognize both fathers as legal co-parents, New York cannot force state officials to administer the ruling by issuing a new birth certificate. Obergefell made this decision irrelevant by overturning Louisiana’s marriage ban. Without Obergefell, Adar will be in play. Authorities in anti-gay states may use the ruling to refuse marriage- or parenting-related claims from same-sex couples.

Court-ordered protections

Sometimes having birth certificates were not enough, especially when parents crossed state lines. While state officials could disregard other states’ birth certificates, they have a constitutional mandate to recognize any court order. The same-sex couples we interviewed sought out “second-parent adoptions” — court judgments affirming both parents as legal guardians even if they weren’t married. As one mom explained, “Whatever someone wanted to do with marriage laws — if they were going to change them and if there was going to be a ballot initiative passed — adoption is pretty ironclad.”

Since Obergefell, only 20 states offer second-parent adoptions. Some states that had affirmed these specialized adoptions stopped the practice after Obergefell because, according to judges, marriage made any child born to a married couple the legal offspring of both — or enabled same-sex couples to use existing stepparent adoptions, which require marriage.

If Obergefell falls, there is no guarantee that second-parent adoptions will return. With marriage equality in flux, the rights of gay parents will again be in the hands of administrators, health-care workers and vital-records clerks. Individuals will be required to interpret a complicated legal landscape — and some will lean on animosity to make their decisions.

Without Obergefell’s protections, gay and lesbian parents living in anti-gay states will no longer have the law on their side when they face uncertainty and hostility as they try to manage their family lives. Even with RFMA, state marriage bans will give schools, hospitals and other institutions the authority to again obstruct and subvert gay- and lesbian-headed families.

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Alison Gash (@AlisonGash) is associate professor of political science at the University of Oregon and co-author of “Democracy’s Child: Young People and the Politics of Control, Leverage and Agency” (Oxford University Press, 2022).