Today marks the anniversaries of four key victories for queer people at the U.S. Supreme Court. Let’s take a look back, see where we are at present, and explore what remains to be done in the future—with a particular eye (as I always have) on the role of LGBTQ parents and our children.
A Right to Privacy
On June 26, 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that consenting adults have a right to privacy in their sexual relationships. The court wrote that the Texas law criminalizing sodomy violated the Due Process Clause of the U.S. Constitution, noting, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
Federal Recognition
That argument rolled forward into the 2013 case Windsor v. United States. Edie Windsor, an early computer programmer, had filed a suit after her spouse of 44 years, Thea Spyer, died of multiple sclerosis in 2009. The couple had married in Canada in 2007, but Windsor was slapped with $350,000 in U.S. federal estate taxes that a legally recognized spouse would not have had to pay. Her case wound its way to the U.S. Supreme Court, which decided in her favor.
The court cited Lawrence in its June 26, 2013, decision, writing that the Defense of Marriage Act (DOMA), the law that banned federal recognition of the marriages of same-sex couples, “undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify.”
While Windsor was not herself a parent, same-sex parents and their children played a key role in the decision (and not just because her attorney, Roberta Kaplan, is a lesbian mom). Marriage equality advocates had been working hard to transform the “think of the children” argument used by marriage equality opponents from a reason to oppose marriage equality into a reason to support it. Among other actions, Family Equality Council (now Family Equality) and COLAGE filed a “Voices of Children” amicus brief in the case, letting youth with same-sex parents explain what marriage equality would mean to them. It is impossible not to hear its echoes in the ruling, where the court leaned heavily on the negative impact that DOMA had on children. As Justice Anthony Kennedy wrote:
DOMA . . . humiliates tens of thousands of children now being raised by same-sex couples. . . . The law in question 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. . . .
DOMA also brings financial harm to children of same-sex couples. . . . And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.
Nationwide Access
While Windsor gave federal recognition to married same-sex couples, not every state allowed us to marry. Full nationwide access to marriage equality came on June 26, 2015, with Obergefell v. Hodges. That decision also built on Lawrence, noting that “while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”
We parents and our children played an even bigger role in Obergefell. Most of the plaintiffs in the case (though not lead plaintiff Jim Obergefell) were parents. April DeBoer and Jayne Rowse had even begun their legal journey seeking only to adopt their children, not to marry. Family Equality and COLAGE filed a another “Voices of Children” amicus brief, co-filed with Kentucky teen Kinsey Morrison, who has two moms. And GLAD Law attorney Mary Bonauto, who argued for the plaintiffs in front of the court and has been called the “mastermind” behind DOMA’s collapse, is also a lesbian mom.
In the ruling, Kennedy again emphasized the role of children, writing:
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.
Despite this focus on children, he then carefully addressed one of the leading arguments against marriage equality, that marriage is entirely about procreation: “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.”
Birth Certificates
Nationwide marriage equality was a significant step forward for many queer people, but it would take yet another U.S. Supreme Court case, Pavan v. Smith, decided on June 26, 2017, to affirm that both parents in a same-sex couple have the right to be on their children’s birth certificates. The case involved two married, two-mom couples in Arkansas who had children using anonymous sperm donors. The court wrote that because of Obergefell:
A State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Indeed, in listing those terms and conditions — the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access — we expressly identified ‘birth and death certificates.’ That was no accident.
They added:
The State insists … a birth certificate is simply a device for recording biological parentage—regardless of whether the child’s parents are married. But Arkansas law makes birth certificates about more than just genetics. As already discussed, when an opposite-sex couple conceives a child by way of anonymous sperm donation—just as the petitioners did here—state law requires the placement of the birth mother’s husband on the child’s birth certificate….
Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.
Limitations and the Way Forward
I must immediately add that while for heterosexual couples, all states presume that any children born during a marriage are children of both spouses, and this presumption should extend to same-sex couples after Obergefell and Pavan, a few state trial courts have ruled otherwise. Even now, every LGBTQ family law expert I’ve spoken with advises nongestational parents to secure their parentage—the legal ties to their children—with an adoption, court order, or equivalent, even if they are married and on their child’s birth certificate. (See my piece on “Legally Protecting Your LGBTQ Family in 2026” and LGBTQ Paths to Parentage Security, a guide from GLAD Law and me, for more on why and how.)
Furthermore, not every queer parent will choose to marry; even some who do may have children beforehand, for any number of reasons related to the timing of assisted reproduction, adoption, access to insurance assistance, and more. Protecting LGBTQ families therefore means protecting the parentage of both married and unmarried parents.
Some states, most recently Delaware, have updated their parentage laws to be more inclusive of the many ways that families, LGBTQ and otherwise, married and unmarried, form and exist today. That work must continue, along with work to support our family formation and family raising in other ways, as COLAGE Chief Policy Officer Meg York explained in a recent interview with me.
Marriage equality, therefore, has been critically important but was never by itself enough. In recent years, too, that equality has been threatened, while the overall climate for LGBTQ people, and transgender people in particular, has grown increasingly hostile—a hostility that threatens both LGBTQ youth and children of all identities with LGBTQ parents. Ironically, most of the arguments against LGBTQ people and “gender ideology” remain centered on the purported harm to children. We LGBTQ people know differently—and we LGBTQ parents and our children will remain among the key voices in countering those arguments.
Our work continues, then. Let us take inspiration today from our past victories, and carry that energy into the future.