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Obergefell's Ambiguous Impact on Legal Parentage
Chicago-Kent Law Review (2017)
  • Leslie J. Harris, University of Oregon

The Supreme Court decisions in Windsor and Obergefell have the potential to affect the law of parent-child relations, particularly the law that determines who is a legal parent. However, how the cases will affect this area of the law is at best ambiguous. The central question of the law of parentage is when and to what extent determinations of legal parenthood should be based on biological relationship, marriage to a child’s biological parent, or functioning as or intending to be a parent. In Windsor and Obergefell the Court endorsed the claim that children whose parents are married are better off socially and legally than non-marital children; the language in both opinions could easily be taken to support legal rules that encourage or prefer childrearing within marriage. On the other hand, the Court assumed that both members of a same-sex couple are in fact parents of the children, even though it is highly likely that only one adult is biologically related to the child. The unspoken premise is that both are parents because both function as parents (and often, but not always, both participated in the decision-making process that led to the child’s conception and birth).
This article examines how the law in the various states balances claims to base legal parentage on biology, function, and marriage, and how the Supreme Court’s same-sex marriage decisions are affecting that balance. The analysis focuses on recent decisions with mixed results from Oklahoma, Maryland, Massachusetts, New York, and Wyoming. The article concludes that the Supreme Court decisions are having some impact in the lower courts, particularly by supporting recognition of the parental claims of adults who are not biologically related to children whom they have raised with their same-sex partners. However, these decisions are limited and cannot protect children and their functional parents adequately in all situations. Therefore, legislative solutions are still needed.
  • parentage,
  • same-sex marriage,
  • Obergefell,
  • paternity
Publication Date
Citation Information
Leslie J. Harris. "Obergefell's Ambiguous Impact on Legal Parentage" Chicago-Kent Law Review Vol. 92 Iss. 1 (2017) p. 55 - 85
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