JURIST Guest Columnist Mary Ziegler of Saint Louis University School of Law says that while a recent Iowa court decision may be a victory for the rights of same-sex parents, the arguments made in the public debate surrounding the case demonstrate a break from the goals of the early gay rights movement and could be used to justify discrimination against other forms of non-traditional families…

JURIST recently reported on the latest round in the litigation of same-sex marriage in Iowa. The plaintiffs in Gartner v. Newton, a married lesbian couple, had demanded the right to have both of their names automatically listed on their child’s birth certificate. The Iowa Department of Public Health refused, requiring the spouse who was not biologically related to the child to pursue adoption before she secured the right to be named on the birth certificate. The Iowa District Court rejected the state’s argument and ordered that Iowa officials list both spouses on the certificate.

On one level, Gartner asks what it means for a same-sex couple to have the right to marry. In Varnum v. Brien, the Iowa Supreme Court joined a number of other state courts holding that state constitutional mandates require that same-sex couples be allowed the right to marry. If Gartner gives any indication, some states may seek to limit the benefits available to same-sex couples. So long as same-sex couples have access to marriage, can states constitutionally create a separate form of marriage for them? Would a separate status necessarily be unequal?

Put in this context, Gartner is a straightforward decision. The court concluded that the right to marry entitled same-sex couples to the benefits available to heterosexual couples. Marriage equality must mean access to the same rights and responsibilities for all couples.

What was the most striking to me, however, were the terms of the public debate about Gartner in Iowa. Camilla Taylor, the Lambda Legal attorney representing the Gartners, has justified her position partly by stressing that children thrive best when their parents are married. Specifically, Taylor has stressed that children may suffer from the stigma attached to illegitimacy. Taylor also suggested that marriage is the best predictor of the quality of a parent-child relationship. Strangely, Iowa seems to have contemplated the possibility that more than two people could have some kind of parental relationship with Baby Mackenzie. By contrast, Lambda Legal has asserted that unmarried parents are rarely, if ever, as good as those who choose wedlock.

In seeking the right to marry, the movement has already emphasized the unique importance of marriage and the degree to which monogamous, established same-sex couples deserve the freedom to marry. Some observers understand these claims as denigrating non-marital relationships and those couples who do not seem “normal” or committed enough. Moreover, at its inception, the gay rights movement challenged the very idea that marriage was better than other forms of intimate relationship. To some observers, the same-sex marriage movement represents a betrayal of the radical promise of the early movement.

Cases like Gartner represent the next step in the struggle for same-sex marriage. In states where same-sex couples can marry, those couples may now have to go to court in order to establish what that marriage means. The movement will now have to demonstrate the virtues of actual same-sex marriages rather than drawing on the more abstract and generalized importance of marriage as an institution.

The next major battlefront in the same-sex marriage war may well involve the question of parental rights. After all, opponents have argued against same-sex marriage partly by contending that children benefit from traditional parenting arrangements. In the context of parental rights, these claims seem more salient. In Gartner, Lambda sought to build on the victories it already secured; the movement can now point to the married status of couples in defending their parental rights.

How should the rights of married same-sex couples be justified? The court in Gartner envisioned a straightforward comparison between married gay and straight couples. According to this view, there is one set of rights available to all married parents, whether they are gay or straight. But, with the use of alternative reproductive technologies (ART) on the rise, the question of parental rights may become much more complicated. The Center for Disease Control estimates that 1 percent of children born this year will come from families using ART, and this number may be an underestimate. In the context of ART, it is far from clear who has parental rights. By all indications, the biological father in Gartner was an anonymous sperm donor and has not sought out any involvement with the plaintiffs’ child. But this may not always be the case. Should genetic parents, including sperm or egg donors, enjoy any parental rights under any circumstances? What about surrogates? Are there any circumstances in which more than two people can enjoy parental rights or responsibilities? Might such an arrangement be justified for children of divorce, who form relationships with stepparents as well with their first caregivers?

Taken at face value, Lambda’s comments suggest that the answer is no. Such a stance may have uncomfortable ramifications for the gay rights movement. Lambda has indicated that married parents are better for children than those who have not tied the knot. Many same-sex couples, however, live in states that do not recognize same-sex marriage. Presidential candidate Rick Santorum, hardly a friend of the same-sex marriage movement, has publicly argued that children thrive when they identify with only two married parents. We might understand Lambda as taking a similar position. Children in the US grow up in a wide variety of family settings and often form relationships with more than two caretakers. Lambda suggests that these relationships fit into an established hierarchy, with married couples at the top. The very focus on securing marriage has divided the gay rights movement. Establishing the parental rights of married gay couples may well do the same.

The question is whether the gay rights movement can fight for marriage equality rather than marriage superiority. Gartner offers an example of just how hard it will be for the movement to achieve this balance. In establishing that married same-sex parents should enjoy the same rights as any other wedded couple, the gay rights movement can all too easily legitimate discrimination against people whose families or parenting arrangements deviate from the norm.

Mary Ziegler is an Assistant Professor of Law at Saint Louis University School of Law. Her publications include articles on the same-sex marriage debate, reproductive rights and the history of the American eugenic legal reform movement. Prior to her position at Saint Louis University, she served as the Oscar M. Ruebhausen Fellow in Law at Yale Law School, and as a clerk for Justice John Dooley of the Vermont Supreme Court.

Suggested citation: Mary Ziegler, Defining the Parental Rights of Same-Sex Spouses, JURIST – Forum, Jan. 14, 2012, http://jurist.org/forum/2012/01/mary-ziegler-parental-rights.php.