By Mary E. Shea
Family Law Forever Changed
In the summer of 2015, we watched celebrations nationwide when the United States Supreme Court fundamentally changed the American legal landscape by holding that the Fourteenth Amendment mandates equal legal marriage rights for same-sex couples.[i] This watershed ruling means that all 50 states must allow legal marriage for same-sex couples and all 50 states must recognize legal same-sex marriages that have been solemnized elsewhere.
Although this decision was celebrated widely as settling the question once and for all, by the time this opinion was issued on June 30, 2015, most states, including Idaho, had already reached the same conclusion legislatively, or by binding federal court decision.[ii] What we have learned in the last few years is that granting same-sex couples the legal right to marry did not really create much controversy in applying marriage and divorce laws state by state. This article will provide a brief overview of the family law issues the legal system is grappling with in the wake of Obergerfell.
Constitutional Protections for Alternative Families
Courts throughout the country are still sorting out whether to treat same-sex or transgendered persons as part of a quasi-suspect class so that discriminatory laws should be subject to heightened scrutiny, similar to gender.[iii] To survive, laws that discriminate against a quasi-suspect class must be substantially related to an important government interest. Discriminatory laws can survive intermediate scrutiny if they have a very good reason to exist.[iv]
One federal court has held recently that sexual identity should be considered a true suspect class similar to race. [v] This means laws based on sexual identity would have to survive strict scrutiny. Applying strict scrutiny to these laws would likely be fatal because such laws rarely survive strict scrutiny.
In Obergerfell and the related family law cases, the Court so far has focused on the important and fundamental nature of the rights denied, rather than on the legal status of the people who have been denied the rights. That analysis, in the marriage context, has been enough.[vi] State laws restricting the right have been struck down consistently, such that even felons facing lifetime imprisonment must be given the right to marry.[vii]
Parenting Rights Have Become More Complex
However settled marital rights are, parenting rights are a different story. Same-sex couples, today, cannot have what the law has indelicately but traditionally referred to as “natural” children except through the use of Assisted Reproductive Technology (“ART”). They can adopt children in all 50 states if they are married, and in most states even if they are not married, although that has only been true in very recent history.[viii]
Idaho adoption laws have never prevented adoption based on sexual preference or marriage and Idaho statutes have never required termination of a natural or legal parent’s rights in order to complete an adoption. Although never prevented, there was no Idaho case holding such until 2014.[ix] If a same-sex couple wishes to have children, only one of the spouses will be biologically related to the child, or neither of the partners will be biologically related to the child.[x] Courts and legislatures throughout the country, including here in Idaho, in light of the obligation to recognize same-sex marriage on the same legal terms as heterosexual marriage, are still working through how to redefine legal parenthood as a result of that biological reality.
The United States Supreme Court has clarified same-sex parenting rights in two important cases post-Obergerfell, both decided per curium without oral argument. In the first case, a lesbian couple together for 16 years conceived three children through ART, with one of the partners serving as the biological mother. With the full knowledge and consent of the biological mother, the same-sex partner adopted all three children and they were raised together as a family. The family moved to Alabama and subsequently, the partners split up. The Supreme Court unanimously reversed Alabama’s attempt to relitigate the legitimacy of the Georgia adoption.[xi]
In Pavan v. Smith, two same-sex married couples who conceived using artificial insemination sued Arkansas, because Arkansas would permit only the birth mother to place her name on the birth certificate. The Arkansas statutes, applying the marriage presumption, permitted husbands of birth mothers to be placed on birth certificates for children conceived the same way. The United States Supreme Court held that this constituted unlawful discrimination against same-sex couples, stating that “the Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples.”[xii]
Post-Obergerfell, state courts deciding this issue have all agreed that the gendered marital presumption has to be applied in a non-gendered way, and they have so far given legal parenting rights and responsibilities to non-biological married same-sex parents. In a recent Hawaii case, the non-biological parent was not permitted to rebut the legal parenting presumption in order to avoid paying child support. The Hawaii court reasoned that if the Uniform Parenting Act is applied in a gender-neutral way, a legally presumed heterosexual parent who is later determined not to be the biological parent could still be made to pay child support, which applies equally to a same-sex partner as the intended parent of the child. [xiii] The Idaho case on this issue is also interesting because in that case the lesbian couple never married. The evidence was uncontroverted, however, that they would have been married when their child was born in 2012 if legal marriage had been available to them in Idaho at that time.[xiv]
Married Same-Sex Couples Who Divorce May Not Opt Out of Parental Obligations
Two of these cases, the Mississippi and the Arizona cases, also raise an interesting estoppel argument to prevent a biological mother from “revoking” her consent to consider her partner the legal parent of the child they conceived and raised together. Equitable estoppel is a legal principle known well to the family law courts; it has been applied successfully in Idaho on several occasions to prevent parents from “changing their minds” about who the legal parent should be.[xv] It has a logical place in this context. A parenting relationship should not be severed simply because a biologically related parent no longer wants the company of their ex-partner. If parents have allowed the parental bond with a child to form in a legal way, they should not be able to retract that relationship simply and only because they have the genetic advantage.
There is a case on appeal in Idaho, where a Magistrate Court denied legal parenting rights to a married same-sex parent for a child conceived and born during the marriage. The trial court held that the marital presumption was rebutted by the non-biological relationship. This will be an important case for Idaho practitioners to watch.
Unmarried Families Should Perfect Their Parenting Rights
The LGBTQ families in the most peril concerning parental rights are the co-parents who never marry and never adopt. In 2016, the Idaho Supreme Court refused to allow an unmarried, same-sex co-parent to assert any legal parenting rights because there is no procedural vehicle for her to assert them in Idaho. The biological mother did not sign a Voluntary Acknowledgment of Paternity at birth, which could have created a legal parenting presumption even without marriage.[xvi] The parents were advised incorrectly (based on pre-2014 assumptions) that as a same-sex couple, the non-biologically related mother could not adopt.
Idaho recognizes an “equitable parenting” rule, whereby a person who has had a “parent-like” relationship with a child can gain legal parent-like rights, such as custody or visitation.[xvii] In this same-sex parenting case, the Idaho Supreme Court clarified the equitable parent rule to be a substantive rule, not a procedural rule: it does not give a parent a vehicle into court. Unless a putative parent has standing to get into court through a legal process involving child custody rights such as divorce, or guardianship, they cannot assert Stockwell equitable parenting rights.[xviii]
Unmarried co-parents in Idaho who are not biologically related to the child they are parenting should be advised to seek adoption because Idaho does not give them any path currently to legal parenthood in the event the co-parents split up and the “natural” parent no longer wishes to have them around.
Alternative Reproductive Technologies Raise Additional Legal Issues
Currently, Idaho regulates only Artificial Insemination (“AI”). There are no statutes concerning surrogacy agreements, although there is a Supreme Court Administrative Order that assigns all such cases to one Judge, ostensibly to assure consistent application of the law to facts. The Uniform Law Commission has updated its Uniform Parentage Act to consider recent developments in the law.[xix] But, Idaho’s AI statute is based on a 1982 version of the Uniform Parentage Act and has not been updated.[xx] The purpose seems to be to help determine legal parentage despite the biology concerns.
On its face, it discriminates between married and non-married parents, and it requires a physician’s assistance for a procedure that does not require medical intervention. Most problematically, Idaho law does not account for the many other, more modern ways ART can now be used to create a life for partners outside of true genetic relationships, such as egg and embryo donation, whereby a birth mother may not even be genetically related to the infant she delivers. The AI statute was at issue in the 2016 same-sex equitable parenting case discussed above, Doe v. Doe, but the legal challenge was not addressed when the Idaho Supreme Court held the plaintiff lacked standing to assert any rights.
Although it took several decades to accomplish, once same-sex marriage equality reached the tipping point, change came very rapidly. Parenting was a very important part of the same-sex marriage decisions and debate. Ultimately, the courts concluded that same-sex parents are no more or less able to raise children well than traditional heterosexual partnerships. As the Sixth Circuit held, “Gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships and the capacity to raise children within them turns not on sexual orientation, but on individual choices and individual commitment.”[xxi] Parenting rights for the LGBTQ community is the next family law frontier. Practitioners would be well served to keep up with this rapidly evolving area of the law.
Mary E. Shea is a partner at Merrill and Merrill, where she has a general civil practice with an emphasis on family law. Mary is a certified child advocate and member of the NACC. Before coming to Idaho, Mary was a civil rights litigator with the Virginia Attorney General’s Office, and prior to that, she was a law clerk for the Virginia Supreme Court. Mary received her law degree from the University of Richmond, and her BA from the College of William and Mary. In her spare time, Mary enjoys hiking and skiing throughout Idaho and the Rocky Mountain West and spending time with her kids and dogs.
[i] Obergerfell v. Hodges, 576 U.S. , 135 S.Ct. 2584 (2015).
[ii] Latta v. Otter, 19 F. Supp. 3d 1054, 1086-1087 (D. Idaho 2014), aff’d, 771 F.3d 456 (9th Cir. 2014), cert. denied, 135 S.Ct. 293 (2015) (permitting same sex marriage in Idaho since October 10, 2014).
[iii] In F.V. v. Baron, 286 F. Supp.3d 1131 (D. Idaho 2018), Idaho was required to permit gender changes for adults on birth certificates without showing such birth certificates as “amended.” Idaho did not appeal, and Idaho has been permitting these changes on birth certificates since April 2018. Following 9th Circuit case law, transgender status was treated as a “quasi suspect” class. This quasi suspect class analysis was also applied in the Idaho same sex marriage case, Latta v. Otter, footnote 2 supra. The Supreme Court has recently granted certiorari in an employment law case that may settle the question of whether LBGQT belong to a protected class.
[iv] E.g., Rostker v. Goldberg, 453 U.S. 57 (1981), which upheld the male-only draft rules. The “legitimate reason” for discrimination was that women were not eligible for combat duty in the military. Times have changed significantly, such that a federal judge recently has found the male only draft rules are discriminatory, because women are now eligible for combat positions. National Coalition for Men, et al. v. Selective Service System, et al., Case No. 4:16-cv-03362, Doc. 87, USDC SD Tex, Houston Div., Filed February 22, 2019.
[v] Karnoski v. Trump, Case No. 2:17-cv-01297-MJP, Doc. 233, USDC WD Wash, Seattle, Filed April 13, 2018 (granting summary judgment against administration’s policies towards transgendered military).
[vi] Justice Roberts’ dissent in the watershed decision striking down Section 3 of the Defense of Marriage Act (“DOMA”) specifically criticized the vagueness of the majority opinion’s analysis, authored by Justice Kennedy. The Second Circuit had applied intermediate scrutiny to the federal law which on its face discriminated against even legally married same sex partners. The Supreme Court did no more than mention the Second Circuit’s treatment of the issue, without offering any opinion at all as to whether it was correct or incorrect. United States v. Windsor, 570 U.S. 744 (2013). Justice Kennedy also wrote the Obergerfell decision two years later, and he again offered no clarification of whether sexual orientation should be treated as a quasi-suspect or suspect class.
[vii] Turner v. Safley, 482 U.S. 78, 95 (1987).
[viii]On March 31, 2016, a federal court struck down Mississippi’s ban on same sex adoption – the very last state to hold out. https://southernequality.org/wp-content/uploads/2016/03/Judge-Jordan-III-opinion-in-Campaign-for-Southern-Equality-v.-Mississippi-Department-of-Human-Services-et-al.pdf. In VL v. EL, 136 S.Ct. 1017, 194 L.Ed.2d 29 (2016) (per curium), without hearing oral argument, SCOTUS unanimously overturned the Alabama Supreme Court’s decision which had refused to recognize a same sex adoption issued out of the Georgia courts. The Court held that the Full Faith and Credit Clause demands that all states recognize adoptions from other states, and that lack of jurisdiction is the only basis for rejecting an out of state adoption.
[ix] Idaho Code § 16-1501 et. seq; In Re: Adoption of Doe, 156 Idaho 345, 326 P.3d 347 (2014).
[x] There are some cutting edge ART technologies that may one day permit same sex couples to have genetically related children, but these are still very experimental, and there a lot of bio ethics questions to address. See, e.g.:
[xi] V.L. v. E.L., 136 S.Ct. 1017, 194 L.Ed.2d 29 (2016) (per curium)
[xii] Pavan v. Smith, 137 S.Ct. 2075 (2017).
[xiii] LC v. MG and Child Support Enforcement, WL 4804417, Hawaii Supreme Court October 4, 2018; Strickland v. Day, 239 S.3d 486 (Miss. 2018); McGlaughlin v. Jones, 401 P.3d 492 (Ariz. 2017); Ayala v. Armstrong, 2018 WL 3636524, Case 1:16-cv-00501-BLW Document 59 Filed 07/30/2018 (D. Idaho).Roe v. Patton, 2:15-cv-00253-DB, Doc. 15, USDC D. Utah, Central Div., Filed July 22, 2015.
[xiv] Ayala v. Armstrong, 2018 WL 3636524, Case 1:16-cv-00501-BLW Document 59 Filed 07/30/2018 (D. Idaho).
[xv] Gordon v. Hedrick, 159 Idaho 605, 364 P.3d 951 (2015)(mother not permitted to withdraw her signature on a VAP absent clear and convincing evidence of fraud, duress, or material mistake of fact); Doe v. Roe, 142 Idaho 202, 127 P.3d 105 (2005) (Father learned during divorce he was not the natural father of the child; biological dad was not permitted to rebut the legal marital presumption because he asserted his rights too late); Miller v. Miller, 96 Idaho 10, 523 P.2d 321 (1974) (Mother could not revisit divorce action to rebut husband’s legal paternity).
[xvi] Idaho Code § 7-1119 et seq. It should be noted that there has not yet been a case in Idaho holding that unmarried same sex partners may use a VAP to establish presumptive legal parenting rights.
[xvii] Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989).
[xviii] Doe v. Doe, 162 Idaho 254, 395 P.3d 1287 (2017)
[xx] I.C. § 39-5401 et. seq.
[xxi] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d, Obergerfell v. Hodges, 135 S.Ct. 2584 (2015).