The Definition of Family is Changing, and It Matters to Our Work
On June 26, 2015, the Supreme Court of the United States (SCOTUS) made a historical decision in the case of Obergefell v. Hodges, ruling that state laws prohibiting same-sex marriage are unconstitutional. This decision, which has implications for the work we do in the field of family development, is not the first time that the definition of marriage has changed, nor is it the first change that took a long time (this movement in the U.S. began in earnest several decades ago). Many people once considered interracial and interfaith marriage unthinkable, and interracial marriage was once illegal in a number of states. Public opinion on same-sex marriage has seen decades of slow progress, with majority approval in the U.S. reached only within the past 5 years. For context, we include data from a Gallup poll on public opinion from 1996–2014:
By changing who can marry whom, Obergefell v. Hodges expands the definition of what can be considered a family and thus extends the benefits of legally recognized marriage to sexual and gender minority (SGM) couples. Frequently cited benefits of a legally recognized union include tax status, health insurance, health care directives, and property rights. In addition to these commonly cited advantages, the SCOTUS decision means SGM families will receive benefits regarding legal relationships to children, including adoption, caregiver rights, interstate migration, and divorce and separation. Let's look at some of these issues and their implications in more detail.
What nationwide same-sex marriage will mean for adoption by SGM couples is still being debated, and the expansion of adoption rights to same-sex married couples in all states may take time. In some states, the same-sex partner or spouse of a biological parent was allowed to adopt a child born in the union. This was an expensive and invasive procedure called second parent adoption. It afforded legal protections to both parents and ensured they were both recognized as legal parents, important factors that affect the child's well-being, especially in school situations, medical emergencies, and financial matters. However, these rights were often questioned or lost when parents crossed state lines, and they were not available in many states.
Presumption of Parentage
There is a long-established legal and statutory principle of the presumption of parentage for both parents when a married couple has a child. In other words, a married man is presumed to be the biological parent of the children his wife bears, unless there is a specific challenge such as a known other biological father. With same-sex marriage the same presumption of parentage should be given to SGM couples. With an extension of the presumption of parentage, in many cases it should be no longer necessary for nonbiological parents to "adopt" children born within the marital union. Policies for SGM couples who want to jointly adopt children, or support foster children, vary substantially between states but will likely converge toward equality in the coming years, following principles such as the presumption of parentage.
Before the recent SCOTUS ruling, in SGM families the nonbiological (or nonadoptive) parent had fewer caregiving rights, unless he or she had engaged in a second-parent adoption, or came from a state with an existing presumption of parentage or other extension of caregiving rights to a person acting in loco parentis. Thus, persons in a same-sex union in some states, who fully acted and lived in families as parents to children of the family, could have no legal caregiving rights at all and have no ability to even seek such rights under state law.
With the nationwide extension of the right to marry, SGM families should find that they have the same rights under state law as heterosexual married couples, with regard to children born to the marital union, adopted children, and stepchildren. This extension of legal rights is both mundane and profound—ranging from seeking medical care, enrolling a child in school, taking a child through airport security, and the host of activities for which a child needs a legal caregiver. This expansion of caregiving rights not only affects family members' interactions with the outside world, but it also influences interactions within the family system, as it is more settled that both persons acting as parents in the family are treated as parents by the world outside the family.
Migration and Relocation
The SCOTUS ruling is expected to have an impact on SGM families' migration and relocation patterns. Before the ruling, many SGM persons were more likely to migrate to cities and states with relatively more protections. Changes in attitudes toward SGM individuals have occurred faster in states where communities of SGM persons are relatively more affluent, educated, and White (e.g., coastal cities and the Northeast) than other regions of the U.S., where SGM persons report less social privilege (Eckholm, 2015). The ruling erases differences between states with respect to marriage, which could act to slow the interstate migration of SGM families. On the other hand, long-held prejudices against LGBT persons may continue to drive some SGM families to move to states perceived as more friendly—so some migration between states may continue.
The ruling also might play a role in changing migration patterns of SGM families within states. Small towns and rural areas traditionally have been less accepting of same-sex couples, and SGM families have migrated to, or been unwilling to leave, larger cities. However, changing attitudes based on new marriage laws might help SGM families feel more willing to live in less populated areas.
Divorce and Separation
One often-overlooked right of legally recognized marriage is the right to divorce or separate with the help of the legal system. In many cases before the SCOTUS ruling, SGM parents who no longer wanted to live together did not always have recourse under state family law systems to assert rights regarding their children—in general, children with whom they had no settled legal relationship—that divorced and separated heterosexual parents already had. With the SCOTUS ruling, divorcing and separating SGM parents have the right to custody determinations as well as to support from family law programs that help families through this difficult process.
Direct Implications for Practice
Although it's important for researchers, evaluators, and practitioners in family science to understand policy changes emanating from the SCOTUS ruling, our focus must be on how those policy changes influence our work. As we consider this expansion in the definition of family, we in NCFR have a timely opportunity to expand our capabilities to include (or further include) SGM families in our work. Like so many other issues in research, this one begins with a discussion of assumptions.
Assumptions in Practice, Research and Program Design
One important way we can adapt is in our processes of data collection. Consider the following examples:
- When sending a survey to program participants about family life, if we assume a respondent is (or was) part of a heterosexual couple, we miss an opportunity to identify SGM families and find out their specific needs.
- When we ask questions about gender and provide only "male" and "female" as possible responses, we miss the opportunity to learn about those whose gender identity does not fit within a binary system.
- When we assume someone is heterosexual, we miss the opportunity to capture the intricacies of his or her identity. For example, although a woman says she is married to a man, she may not identify as straight.
These are just a few examples of situations that call for changes in research and practice in order to better serve SGM families and thus open our learning and programming to be more inclusive to a broad range of diverse populations.
On the Horizon
When a child is born, a family redefines itself in order to include this new member. Before Obergefell v. Hodges, SGM parents faced the same challenges as heterosexual parents in redefining themselves and adapting to new roles and rules after the birth of a child. However, SGM parents faced additional challenges, even in states that had already extended marriage equality to SGM parents, because of a lack of recognition of marital and parental status in all states and, in some instances, under federal law. Now SGM parents have recognition of their status in all 50 states, and under federal law, and thus now have a legal equal status for the tasks of parenting.
Although marriage equality has been a major advance in the rights of SGM persons to live in families and raise children, SGM individuals still face challenges in other areas of life. Housing and employment discrimination on the basis of sexual orientation or gender identity is still permitted in some states. Social and health disparities, such as higher rates of poverty, suicide, homelessness, and mental health problems, continue to exist in SGM persons, as do higher rates of HIV among male and transgender SGM persons. Rates of violent acts against SGM persons continue to be higher than those against many other disadvantaged groups. Transgender persons in particular are among the most likely to be murdered individuals worldwide, including in the U.S.
The SCOTUS ruling opens new doors to SGM parents as they incorporate their new legal statuses into the joys and struggles of raising children and provides hope that the other forms of social inequity against SGM persons will continue to be mitigated.
Eckholm, E. (2015, June 27). Next fight for gay rights: Bias in jobs and housing. New York Times. Retrieved from http://www.nytimes.com/2015/06/28/us/gay-rights-leaders-push-for-federal...
McCarthy, J. (2014, May 21). Same-sex marriage support reaches new high at 55%. Retrieved from http://www.gallup.com/poll/169640/sex-marriage-support-reaches-new-high.aspx
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