Marriage equality, while “a game-changer for LGBT families,” may also give some parents a “false sense of security,” according to a new report.
In, “Love Wins?,” authors Amanda K. Baumle and and D’Lane R. Compton, associate professors of sociology at the Universities of Houston and New Orleans, respectively, look at the complex relationship LGBT people have with marriage equality, and remind us, “Treating marriage equality as the catch-all solution for legal obstacles faced by LGBT families is problematic.”
They note that “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.” At the same time, however, they caution, “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.”
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.
They cite data from their previous study of 137 LGBT parents (discussed at length in their book Legalizing LGBT Families: How the Law Shapes Parenthood
This means that marriage won’t solve all of the legal issues surrounding LGBT families, they say. And many LGBT parents, even after marriage equality, still feared that their rights could be removed—fears that have been “reinforced by conflicting messages from the Trump administration regarding LGBT rights.”
Many of the study participants thus took action beyond marriage, such as second-parent adoptions for non-biological parents, to ensure their legal bonds. “Although the marital presumption of paternity would provide parental rights for a non-biological parent in a heterosexual relationship,” the authors explain, “some remained nervous about whether this presumption would translate to same-sex couples…. Given recent legal decisions that have refused to apply the marital presumption of paternity to same-sex marriages, these fears are not unfounded.” [My bold.]
The notion that the availability of marriage creates an expectation or requirement for marriage in order to acquire parental rights is fundamentally problematic.
Baumle and Compton also raise the important question of whether marriage is becoming an unfair expectation. One couple, they tell us, in a state that was generally favorable to LGBT parents, was required by a judge to marry before completing a second-parent adoption. “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.”
This focus on marriage might also “mandate a heteronormative outcome for LGBT families”—something not all LGBT individuals want, and which also “ignores the legal challenges faced by single LGBT parents.” It remains possible, they say, “that evolving LGBT legal consciousness will include a push to reconsider our privileging of the marital institution.”
Marriage equality  has been a tremendously good thing for me personally and for same-sex couples (and our children) generally. At the same time, I, too, have been skeptical (including right after the Obergefell marriage decision, and again with regard to second-parent adoptions) that it provides all of the legal coverage we need. I appreciate Baumle and Compton’s work in helping to spread awareness of this, and also to remind us of the variety of opinions on marriage even within the LGBTQ community.
The report was published in Contexts, a publication of the American Sociological Association.