The United States Supreme Court on Same-Sex Marriage
By Meghan McGregor and Joseph Cipriani
In June of 2015 the Supreme Court handed down the historic ruling of Obergefell v. Hodges, which granted same-sex couples the right to legally marry. This ruling erased inconsistencies among the states’ marriage laws and also rendered the discriminatory language in certain federal laws unenforceable. While the Court considered several reasons for its ruling, creating a stable family unit was of vital importance to the Court when reaching a decision.
“As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.” – Justice Kennedy
The Court’s intent seems clear. The rights of same-sex couples regarding children should be the same as heterosexual couples. Children play a fundamental role in the context of marriage, and the Court recognized the intermingling of the two. But given the obstacles of biological conception for same-sex couples, there remains a grey area when it comes to surrogacy.
It is well established that certain states have friendlier surrogacy laws than others. While the ruling in Obergefell doesn’t advance state laws by creating federal standards for surrogacy, it does help to level the playing field for same-sex couples who are married or are ready to marry. In situations where a couple is married (gay or straight) the barriers to being named as the legal parents of a child are far fewer. This is most evident in the realm of pre-birth orders.
In Colorado, Intended Parents may seek a pre-birth order from the court, which allows the Intended Parents’ names to be placed on the child’s birth certificate instead of the gestational carrier’s. This resolves any uncertainty concerning the parentage of a child, since the surrogate is presumed by statute to be the mother as the one giving birth and would normally be listed as such on the birth certificate. Colorado has very few restrictions regarding the genetic relationship between Intended Parents and child with regard to pre-birth orders. Whether only one party is genetically related, both are, or none are, the court grants pre-birth orders to both heterosexual and same-sex couples in almost any combination of scenarios. The only significant restrictions that remain are for unmarried same-sex couples (or those without a civil union) when only one Intended Parent is genetically related to the child, or when neither is.
“A [. . .] basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser.” – Justice Kennedy
While the federal legalization of same-sex marriage is a huge leap forward in giving equal rights to gay spouses, it fails to clear all the hurdles for same-sex couples. The modern family unit is ever evolving in its structure, and hopefully the law will continue to evolve with it.
Read the entire opinion here.