Abstract
For LGBT individuals who have experience exclusion from legal marriage, the choice to suddenly embrace an institution that they perceive as flawed, discriminatory, and symbolic of gender inequality can present irreconcilable differences.
In June 2015, the U.S. Supreme Court rendered its decision in favor of marriage equality, prompting widespread declarations of victory for LGBT couples. The immediate claims of “Love Wins” were quickly followed by a sense of “mission accomplished,” powerfully driven home by the shuttering of the grassroots organization, Marriage Equality, in May 2016. Activists have shifted their focus toward other areas of inequality, including discrimination in employment and housing and against the transgender population. In many respects, this transition is both unsurprising and warranted. Access to legal marriage has been a game-changer for LGBT families. Marriage provides easier access to establishing paternity through opportunities such as joint adoption, the marital presumption of paternity in some jurisdictions, and recognition of a legal stepparent.
Legal marriage also removes the necessity of consulting with attorneys to draft documents that mimic many of the legal rights of marriage, including rights to make decisions for their child or partner. On a broader scale, the Court’s decision has ripple effects that legitimate LGBT families and their legal rights, meaning that favorable outcomes are more likely even when family issues arise outside of legal marriage.
Despite these important shifts, treating marriage equality as the catch-all solution for legal obstacles faced by LGBT families is problematic. Interactions with the law are determined by more than simply the law on the books. Prior experiences with the law and legal and sociopolitical environment shape the degree of trust people place in the law and legal institutions, including their willingness to engage with the legal system.
In the years leading up to national marriage equality, we interviewed 137 parents across the U.S. to explore when and how LGBT individuals use the law on behalf of their families. Our sample included men, women, and transgender individuals who became parents through insemination, prior heterosexual relationships, adoption, marriage, and other approaches. We sampled across states we determined as being legally positive, legally negative, and legally neutral based on laws and judicial precedents that directly affected LGBT families, including marriage, adoption, second parent adoption, foster, and surrogacy laws. States with protective laws on these topics were coded as positive, and those with laws impinging on rights for LGBT families were coded as negative. States without statutes or judicial precedent on these issues were classified as legally neutral, though these states typically had negative sociopolitical environments. Approximately a third of our sample came from each of these types of legal contexts, with approximately one-third from states that offered same-sex marriage.
Changes in formal law do not immediately translate into changes in how people understand or use the law.
We found that a history of LGBT conflict with the legal system has produced, for many, an enduring distrust of the law within their family lives. For some, this distrust manifests in continuing to seek added legal protections outside of marriage. Many of our parents recognized that while marriage may have secured a spousal relationship, it did not necessarily secure parenting rights, particularly for a non-biological parent. Indeed, one profound impact of marriage equality may be that it provides a false sense of security to some parents about their rights, including their right to make medical or education decisions for their child and their right to custody or visitation. For others, distrust of the law contributes toward a rejection of legal relationship recognition as counter to their personal or political interests. Overall, our research indicates that, regardless of whether or not individuals marry, legal issues persist for LGBT families and their children in this post-equality era.
Legal Consciousness and LGBT Families
Our interviews with LGBT parents shed light on the complicated factors that work together to shape legal consciousness. Legal consciousness refers to the meanings given to the law by individuals, including how these meanings are used, reproduced, or contested. Cultural messages about the law are varied and conflicting. The law can be viewed as a legitimate and objective authority; a flexible doctrine that can be used by those with resources to achieve their ends; and/or an oppressive tool of those in power which must be resisted or altered. The stories of our participants reveal that LGBT parents take these circulating messages and accept, reject, or modify them based upon their legal and sociopolitical context; mediating factors such as social networks, the media, and legal actors; and their own individual factors, such as personal histories, parenting desires, and demographic characteristics.
This means that whether a legal right is or is not available is only a small part of understanding how individuals choose to use the law. Their legal consciousness is shaped by their history as an individual with particular characteristics or life experiences, nested within a geographic context with its own set of legal and cultural practices and privileges. For these reasons, the availability of legal marriage in the United States will not necessarily result in a rapid resolution of all of the legal issues surrounding LGBT families. Legal consciousness lags behind changes in formal law, and it is not uniformly experienced across all areas of the country.
Skepticism about Marriage
One consequence of the historical conflict between the legal system and LGBT families is the creation of skepticism about the capacity of the law to resolve family issues. This lack of confidence was a common response by our participants to the acquisition of legal rights for their families.
For example, Hannah, a partnered White lesbian, lived in a legally neutral state that was sociopolitically hostile. Unlike LGBT individuals in some states, Hannah was able to complete a second-parent adoption of the child that she and her partner, Beth, had together. Despite her legal status as an adoptive parent, Hannah continued to feel nervous about her relationship to her child. She explained: “Honestly, I’m grateful that we live in a state that has second-parent adoption…. I feel, though, that if push kind of came to shove, whereby Beth and I separated or something happened, that I could very well lose [our child] or have reduced rights…. And this is just the perception that I feel like, even though I am legally the second parent, that because of the state that we live in, the climate that we live in, that my rights could be easily undermined or challenged or extinguished.” For Hannah, the availability and use of a legal right was insufficient to create a feeling of security about her parent-child relationship, to overcome the experience of years of hostility directed toward same-sex couples within her jurisdiction.
Framing battles for LGBT rights as issues of love and marriage overlooks substantial variety in family formation.
Carol and Co., Flickr
This cynicism about the law was echoed by participants across sociopolitical and legal contexts, including those living in states where same-sex marriage was permitted. The idea that legal rights can be easily removed reflects an awareness of the history of antagonism directed toward LGBT families through legislation and by legal actors. Post marriage-equality, these fears are reinforced by conflicting messages from the Trump administration regarding LGBT rights, including leaks of potential executive orders that broaden exceptions to marriage and antidiscrimination laws based on religious freedom and the nomination of a conservative justice to the Supreme Court. In addition, support for legal actors, such as county clerks, who refuse to issue marriage licenses or honor legal marriages drives home the tenuous nature of fledgling legal rights—after all, laws and practices often differ. In this environment, it is unsurprising that some LGBT parents would hesitate to rely on marriage as the solution to their family’s legal needs.
For many of our participants, distrust about the stability of LGBT-friendly legal decisions resulted in proactive measures to shore up their legal status. In particular, many married couples discussed their decision for the non-biological parent to complete a second-parent adoption of children born after their marriage. Although the marital presumption of paternity would provide parental rights for a non-biological parent in a heterosexual relationship, some remained nervous about whether this presumption would translate to same-sex couples.
For example, Johanna is a married White lesbian who resides in a legally neutral state that is socio-politically hostile to LGBT individuals. As a non-biological parent, she described her desire to obtain second-parent adoption as based, in part, on a lack of confidence in marriage for conveying parental rights, saying: “I think everybody sort of thinks that their relationship is strong—well, I don’t know about everybody, but most people who get married think it is going to be for a long time. And I felt that way, but I still felt that… having it legalized would protect me.” Her statement that second-parent adoption offered her protection reflects the belief that marriage is insufficient to create an incontrovertible parental right.
Judges have frequently treated non-biological parents as “not real parents,” and there was a great deal of fear voiced by our participants about a biological parent having a superior claim over a child in the event of dissolution. Although legal marriage might provide a foundation for arguing parental rights, non-biological parents are often unwilling to rely on marriage when it comes to something as important as establishing a legal relationship with their child. Given recent legal decisions that have refused to apply the marital presumption of paternity to same-sex marriages, these fears are not unfounded. It is unsurprising, then, that LGBT individuals continue to feel the need to seek out extra protection outside of marriage for themselves and their families.
For some individuals in our study, having the names of both parents on the birth certificate was viewed as establishing a superior parental claim over a child for the non-biological parent. Some of our parents viewed this document as more practically important than a marriage certificate for demonstrating family relationships because it is often requested or required for many aspects of family life, including for school enrollments, social security, or passports. Despite the fact that birth certificates are administrative documents that carry less legal weight than adoption or marriage, our participants often treated them as a less contestable form of generating parental rights. After marriage equality, there have been challenges by LGBT individuals to change birth certificate forms and procedures in order to include both partners. In addition, same-sex couples who had children prior to marriage equality have petitioned to retroactively include their partner on the birth certificate. These practices emphasize the suspicion that some LGBT individuals feel about parental rights conferred through marriage and the desire to shore up their legal relationship with their children.
Rejection of Marriage
Despite this distrust, some of the legal issues experienced by LGBT parents can be resolved through marriage. This assumes, however, both the availability of a partner and a willingness to marry. As voiced by some of our couples, fear of backlash from marriage and rejection of a heteronormative institution can lead LGBT couples to forego the marriage option. This produces challenges if individuals choose to establish marriage-like legal rights through contract or equity principles, and also leaves some individuals without legal parental rights.
Whether a legal right is or is not available is only a small part of understanding how individuals choose to use the law. Their legal consciousness is shaped by their history as an individual with particular characteristics or life experiences, nested within a geographic context with its own set of legal and cultural practices and privileges.
Given that employment discrimination based on sexual orientation or gender identity is not prohibited across all states, LGBT individuals who are not open about their sexuality at work expose themselves to termination if they marry. Some of our participants residing in legally negative jurisdictions raised concerns regarding employer backlash related to marriage, and others who chose to marry expressed fear that their marriage would be discovered.
For example, Julia, is a married White lesbian who resides in a legally negative state. She was active in the military when she and her partner married in another state. She was concerned about marrying while “Don’t Ask, Don’t Tell” was in effect, but explained that they felt they could keep their marriage a secret: “I wanted to change my last name, too, because she has a very unique last name, but I knew I probably couldn’t do it then because I didn’t know if the military would be able to find out about it or not. But I knew the marriage itself, more than likely, they wouldn’t, unless there was some reason for them to go researching, which they probably wouldn’t.” Although married, the couple was unable to take advantage of many employee marital benefits out of concern that their marriage could result in expulsion from the military. While law and policy has changed surrounding sexuality and military service, LGBT individuals residing in states without employment protection face similar apprehension about the potential fallout of marriage from their employers. These concerns can result in the decision not to marry among those otherwise inclined to do so.
In addition to avoiding marriage over fears of being fired, some LGBT individuals would prefer not to marry. Many of our participants living in jurisdictions with access to marriage indicated that they were strongly opposed to marriage and would prefer to obtain legal or social recognition through other means.
Others married despite these sentiments, usually voicing a sense that there were some social benefits of marriage that could not be recreated through other legal mechanisms. Janis and Laura, a White lesbian couple living in a legally positive state, were resistant to marriage, but Janis explained that their political opposition to marriage dwindled when they considered the security that it could bring to their children: “[W]hen gay marriage became legal we felt that we didn’t particularly want to participate in an institution that was normative and hegemonic.…Once I was pregnant, we thought—these little girls are going to someday ask us if we’re married and they’re going to be pretty young when they do that and they’re not going to understand our queer critique of the institution of marriage at that age. And what they’re really going to be asking is, do you love each other, are you going to stay together? And we want to just be able to say yes, in a way that they would understand.”
Although legal marriage might provide a foundation for arguing parental rights, non-biological parents are often unwilling to rely on marriage when it comes to something as important as establishing a legal relationship with their child.
This story, echoed by other participants in legally positive states, demonstrates that the decision to make use of an available legal right is not always a simple one. For LGBT individuals who have experienced exclusion from legal marriage, the choice to suddenly embrace an institution that they perceive as flawed, discriminatory, and symbolic of gender inequality is often difficult to reconcile. Although some couples begrudgingly choose to marry in order to acquire legal and social benefits for themselves and their children, others do not. They either continue to rely on contractual agreements that mimic, but cannot replicate, legal marital rights, or they forego legal protections altogether.
Many point out that marriage should be a right, not a requirement upon which other rights are dependent.
Ludovic Bertron, Flickr
With the availability of marriage, some worry that LGBT individuals will be expected to marry if they wish to obtain legal parental rights; failure to do so could indicate an overt decision not to parent. Indeed, one of our couples residing in a legally positive state described a situation where a judge required them to marry prior to completing a second-parent adoption. Maxine and Allison, a White queer-lesbian couple, had not planned to marry, but chose to do so after their judge indicated that he would not approve Maxine’s second-parent adoption of their child unless they were married. As Allison explained, “I’m really curious about what would have happened if we had had a more experienced lawyer and if we would have tried to fight it. But again, Maxine was very uncomfortable with not having done the adoption so we just did whatever we needed to do to make it go faster. But if I had the time and the money to make political statements, I’m pretty curious about what would have happened.”
For couples who would prefer not to marry, the notion that the availability of marriage creates an expectation or requirement for marriage in order to acquire parental rights is fundamentally problematic. Indeed, some recent decisions surrounding parental rights suggest that judges might consider whether a couple takes advantage of legal marriage as evidence of intent to parent a child.
Legal Consciousness in Flux
Despite the huge gains experienced by LGBT families following marriage equality, changes in formal law do not immediately translate into changes in how people understand or use the law. Changing the legal experiences of LGBT families cannot be accomplished in a single sweeping gesture, but must evolve as part of an interactive process involving formal law, legal actors, individual desires, and the context in which individuals are nested.
This is made evident by our parents’ distrust of the permanence of legal rights once they are acquired, which often led to bolstering their legal claims by combining legal and administrative approaches. Lack of confidence in the law is a product of a history of legal attacks on LGBT individuals and their families, and is particularly experienced in states that are more socio-politically negative toward LGBT individuals. These attacks have persisted post-marriage equality in judges’ decisions regarding issues such as the marital presumption of paternity, proposed religious freedom laws that enable discrimination against LGBT individuals, and in politicians’ calls to reverse the Supreme Court’s marriage decision. Consequently, the notion that LGBT individuals would fully embrace marriage equality as the resolution of family legal matters is not realistic. Shifts in legal consciousness will be more gradual and will be responsive to the way that this new legal reality unfolds in the coming years.
The decision to make use of an available legal right is not always simple. For LGBT individuals who have experienced exclusion from legal marriage, the choice to suddenly embrace an institution that they perceive as flawed, discriminatory, and symbolic of gender inequality is often difficult to reconcile.
In addition, many of our participants emphasized that the marital institution is not fully embraced by all members of the LGBT community. Treating marriage as the primary goal for equality ignores this fact and, as raised by several parents, instead might mandate a heteronormative outcome for LGBT families. The focus on marriage also ignores the legal challenges faced by single LGBT parents. Given that the same-sex marriage debate made salient the tie between marriage and hundreds of legal rights and social privileges, there remains the possibility that evolving LGBT legal consciousness will include a push to reconsider our privileging of the marital institution. The path forward from marriage will reflect the many ways that legal consciousness is affected by events and interactions among actors, further demonstrating it as dynamic and always in flux.