Five years ago today, the U.S. Supreme Court declared that marriage should be open to all couples, no matter their gender—and one of the strongest arguments in the case was the best interests of children. Yet even five years after marriage equality, we are still struggling towards full equality for our families.
Justice Anthony Kennedy wrote in the majority opinion of Obergefell v. Hodges, the case that won marriage equality nationwide:
Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.
Marriage equality advocates had worked hard to transform “think of the children” from an argument against marriage for same-sex couples into one for it. Back in 2008, during the Proposition 8 battle in California, marriage equality opponents tried to scare people by saying that marriage equality would require that students learn about homosexuality in schools (as if that were a bad thing). Prop 8 passed, and same-sex couples were blocked from marriage. By 2013, however, the U.S. Supreme Court wrote in Windsor, the case that tore down part of the Defense of Marriage Act (DOMA): “[DOMA] humiliates tens of thousands of children now being raised by same-sex couples…. [and] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Variations of that argument were then used to win every other federal decision on marriage equality, except for the one in the 6th Circuit, which ruled against marriage equality and thus precipitated its hearing before the Supreme Court in Obergefell.
Most of the plaintiffs in Obergefell were parents (though not lead plaintiff Jim Obergefell), as I detailed here. Additionally, many children of same-sex parents contributed to the Voices of Children amicus (“friend of the court”) brief in Obergefell, organized by Family Equality Council, COLAGE, and Kentucky youth Kinsey Morrison. Many others spoke out in public forums, in their classrooms, or on the playground to stand up for their families. (The most well-known of these is perhaps Zach Wahls, who in 2011 spoke at an Iowa House hearing about a bill to ban marriage for same-sex couples, and is now an Iowa state senator himself.)
Marriage is an important institution for both practical and symbolic reasons, and the impact of Obergefell was positive and resounding. Marital rights and parental rights have a complicated and not coterminous relationship, though, and nonbiological mothers have had to bring lawsuits in many states, even after Obergefell, in order to gain legal rights to their children and be put on their birth certificates. (A short and probably incomplete list: Arkansas and Arizona, Hawaii, Indiana, Mississippi, Oklahoma, and Wisconsin.) And just last week, as I recently wrote, Indiana has asked the U.S. Supreme Court to deny the right of married nonbiological mothers in same-sex couples to be put on their children’s birth certificates without second-parent adoptions, thus denying the children the security of having two legal parents from birth. (The Supreme Court has yet to say whether it will take the case.)
Additionally, the U.S. State Department is continuing to deny some children of married same-sex couples equal rights to citizenship—although a federal court last week said they were wrong to do so in one instance.
Furthermore, marriage is not the solution to all of our inequalities. The Supreme Court ruled last week that people cannot be fired from their jobs because of their sexual orientation or gender identity, which is another huge milestone; yet the Trump administration has also finalized a rule that says health care anti-discrimination protections don’t cover discrimination based on LGBTQ identities. More and more states and the federal government are permitting religiously based discrimination in adoption and foster care. And transgender people continue to face discrimination in many other areas, including military service.
Many LGBTQ rights organizations are pushing for the passage of the Equality Act, which would offer broad protections to LGBTQ people and our children throughout our daily lives. That seems a good idea, but will likely depend heavily on the results of the November election. Even as we look back with pride on the progress we’ve made over the past five years, then, let us also recommit to the work we still need to be doing.
