Equal protection for children of same-sex parents.

• Author: Smith, Catherine E.
• Position: Introduction through III. The Legal Exclusion of Children of Same-Sex Parents Warrants Intermediate Scrutiny A. The Equal Protection Law of Nonmarital Children, p. 1589-1615

ABSTRACT

Gay rights litigation and advocacy traditionally have focused on the unequal treatment of gay and lesbian individuals and couples; less attention has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. This Article asserts that a child of same-sex parents denied a government benefit has a cognizable equal protection challenge--a legal claim that is separate and distinct from that of the child's gay or lesbian parents. It is well-settled equal protection law that the government may not treat nonmarital children differently than marital children because of moral disdain for their parents' relationship, and laws classifying children based on their parents' marital status are subject to intermediate scrutiny. Today, a majority of states exclude children of same-sex parents from the economic benefits that could be derived from their non-biological same-sex parent, including health insurance, workers' compensation benefits, child support, and social security benefits. When medical events, divorces, lay-offs or death occur in the lives of children of same-sex parents in these 'no-protection " states, they are denied important economic safety nets--safety nets that children of married and unmarried opposite-sex parents enjoy. As a subset of nonmarital children, children of same-sex parents exercise no control over their parents conduct, but suffer concrete economic injuries because of the state's imputation of immorality to them. This government-sponsored discrimination cannot be fairly justified on the basis of preserving traditional family values or on the basis of ensuring administrative efficiency. No-protection" states must dismantle the insurmountable barrier that blocks children of same-sex parents from establishing a legal relationship with their non-biological same-sex parent, and place them on equal footing with their opposite-sex parented peers.

TABLE OF CONTENTS I. INTRODUCTION II. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS A. The Legal Construction of Parenthood B. The State Benefits Denied Children of Same-Sex Parents 1. State Benefits 2. Social Security and Federal Benefits Dependent on State Definitions of Legal Parentage III. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS WARRANTS INTERMEDIATE SCRUTINY A. The Equal Protection Law of Nonmarital Children B. Children of Same-Sex Parents As a Subset of Nonmarital Children 1. Children of Same-Sex Parents Have No Control Over Their Parents' Conduct or Their Status of Birth 2. Imputing Immorality to the Child to Deny Basic Safety Nets Is Impermissible 3. Children of Same-Sex Parents Suffer Concrete Economic Injuries IV. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS TO "PRESERVE MORAL VALUES" A. Preserving "Family Values" Arguments 1. The Lack of a Nexus to Financial Stability V. ADMINISTRATIVE EFFICIENCY AND THE INSURMOUNTABLE BARRIER DOCTRINE A. The Insurmountable Barrier Doctrine B. The State Options to Remove the Insurmountable Barrier 1. Voluntary Acknowledgment of Paternity/Parentage 2. Other Forms of Parental Acknowledgment a. Intent to Parent Statutes b. "De facto" Parental Status 3. Second-Parent Adoption 4. Domestic Partnerships, Civil Unions and Marriage 5. Legal Channels for Children 6. Preventing Spurious Claims VI. Conclusion I. INTRODUCTION

What about the children? (1)

Gay-rights litigation and advocacy have traditionally focused on the unequal treatment of gay and lesbian individuals and couples, less has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. (2) To date, no state or federal court has directly addressed what level of scrutiny applies to children who face discrimination because of their same-sex parents' relationships. (3) In one of the few cases brought directly on behalf of children of same-sex parents, a trial judge dismissed the children's equal protection claim against a same-sex marriage ban as lacking "any precedent directly on point ... that the minor [p]laintiffs may assert such 'derivative' claims." (4) Surprisingly, the court's conclusion does not comport with the history of successful equal protection challenges by children who are discriminated against because of the moral disdain of their parents' relationships. (5) It is well-settled equal protection law that the government may not treat nonmarital children (once called illegitimate children) (6) differently than marital children, and such distinctions are subject to intermediate scrutiny. A child of same-sex parents denied a government benefit has a cognizable equal protection challenge--a legal claim that is separate and distinct from that of the child's gay and lesbian parents. (7)

In a significant number of states, in what this Article will refer to as "no-protection" states, children of same-sex parents are excluded from countless rights and benefits in relation to their non-biological same-sex parent, including health insurance coverage, workers' compensation benefits, child support, social security benefits, inheritance, and wrongful death recovery. (8) Shockingly, even when courts acknowledge these injuries, they simply treat the economic harms to the child as abstract collateral damage in the legal wrangling over same-sex marriage. (9) While supporters and opponents of gay rights invest millions of dollars into the battle over same-sex marriage in states like California that extend significant legal protections to same-sex couples and their children, "no-protection" states operate a complete caste system.

Children of same-sex parents are certainly relevant to the gay rights debate, (10) and they are a growing population in number and visibility. According to the United States Census, twenty-eight percent of cohabitating same-sex couples are raising at least one child under the age of eighteen. (11) The exact number is unknown; however, social scientists estimate that our nation is home to somewhere between 300,000 and 1 million children being raised by same-sex couples, and the number of single gays and lesbians raising children increases this estimate to at least two million children. (12) Like children of opposite-sex parents, children of gay and lesbian parents live through the entire range of experiences that define family life, including crises in their households such as medical events, divorces, lay-offs, and deaths. (13) Further, contrary to the popular "affluent gay stereotype," children of same-sex couples are in need of the benefits that they are denied. These children are twice as likely to live in poverty in comparison to marital children, (14) and their parents have lower median and average incomes than married opposite-sex couples raising children. (15) Yet, when crises occur in the lives of children of same-sex couples, "no-protection" states may deny these children benefits specifically designed to serve as safety nets to protect children within family units--benefits that children of married parents obtain as a matter of course.

As a generation of children with gay and lesbian parents come of age in significant numbers and begin to collectively assert their rights, anti-gay policies that subject them to different treatment than their opposite-sex parented peers will be subjected to further social and legal scrutiny. (17) "[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." (18) Children of same-sex parents will change the face of the LGBT movement and push the boundaries of this evolving social and legal battleground. (19)

This Article offers a blueprint for an equal protection challenge to remedy government-sponsored discrimination against children of same-sex parents. For practical purposes, this Article suggests that the ideal plaintiff would be a child who has been denied a government benefit in a "no-protection" state, who has same-sex parents, one biological and the other non-biological, and where there is no legal relationship between the child and the donor or surrogate. This Article also focuses on state-level benefits and responsibilities. In this context, this Article first brings to the forefront the unequal treatment of children of same-sex parents who are denied equal treatment in comparison with marital children. It also identifies the inadequacies of potential state justifications for the disparate treatment of children with same-sex parents and offers a number of legal strategies that states could adopt to remedy these unconstitutional practices. (20) In Part II, the case is made plain that children of same-sex parents in "no-protection" states--states that offer no state-wide legal avenues to a child to create a legal relationship to their non-biological parent (21)--are treated differently than their opposite-sex parented peers, both married and unmarried, and delineates how this disparate treatment serves as the basis for an equal protection challenge. Part III lays out the nonmarital status jurisprudence and explains why the disparate treatment of children of same-sex parents warrants intermediate scrutiny. Parts IV and V address likely...