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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Creating Family (Law): Commentary on Eskridge and Riano’s Marriage Equality: From Outlaws to In-Laws
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Thursday, October 01, 2020
Creating Family (Law): Commentary on Eskridge and Riano’s Marriage Equality: From Outlaws to In-Laws
Guest Blogger
For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020). Doug NeJaime In
their masterful book, Marriage Equality: From Outlaws to In-Laws,
William Eskridge and Christopher Riano supply what will likely become the
definitive account of the LGBT movement’s campaign for marriage equality. Even
those readers who lived the marriage fight as an advocate or studied it as a
scholar will find new and fascinating details in the history that Eskridge and
Riano document. Indeed, as someone who has long researched and written about the
LGBT movement and is currently leading legislative advocacy in Connecticut for
LGBT family law reform, I gained new insights and information about the debates
and struggles that played out in my own state. Eskridge and Riano not only
furnish a history of the path to marriage equality that is deeply engaging and
comprehensive (the text runs 753 pages); they leverage that history to provide
a compelling account of law and social change. Three
key dimensions emerge from this account. First, Eskridge and Riano show how
shifting cultural and social norms contribute to changes in understandings of
constitutional principles. Their argument is both descriptive and normative.
They see in marriage equality a powerful struggle to force the nation to live
up to its commitments to liberty and equality—a struggle in which courts play an
important, but by no means primary, role. (pp. 634-40) Second, Eskridge and
Riano show how those who challenge traditional norms and settled legal
understandings provoke others who rally in defense of tradition and precedent
(what some may call “backlash”). (pp. 113-44, 311-95) Eskridge and Riano’s
treatment of marriage equality demonstrates how conflict may transform the
polity’s understanding of the groups involved (e.g., LGBT people) and the
institutions at issue (e.g., marriage, parenthood, and the family). Third, Eskridge
and Riano show how creative lawyers and their LGBT clients envisioned and built
a more progressive and inclusive family law regime. The LGBT movement forced
law to credit and recognize “families we choose,” a term coined by cultural
anthropologist Kath Weston. (p. 712) While the three dimensions of Eskridge and
Riano’s account of law and social change are deeply connected, I focus here on the
third—what the book helpfully frames as family law pluralism. (p. 717) Across
the book, we are invited into the lives of LGBT people who, over the course of
decades, forged relationships of intimacy and care even in the face of stigma
and discrimination. Eskridge and Riano show how law came to respect these
unconventional arrangements, valuing both “partners we choose” (p. 723) and
“children we choose” (p. 734). Pushed by LGBT advocates, the family law system
increasingly eschewed restrictive criteria that turned on gender, sexual orientation,
marital status, and biological connection and instead captured family relations
as they existed. Of course, the legal system has done so incompletely and
unevenly. But the trend is clear, and Eskridge and Riano show the trend-setting
role that LGBT movement actors played—and continue to play. The book’s account
is a testament to the creativity and innovation of lawyers, lawmakers, and
activists representing LGBT interests. This ingenuity was on display with
advocacy aimed at adult relationship recognition as well as with parent-child
relationships. Against
the backdrop of a hostile society and a discriminatory legal order, LGBT advocates
developed new relationship recognition mechanisms for unmarried couples.
Perhaps none has been more important or enduring than domestic partnership. The
authors devote a significant number of pages to the origins of domestic
partnership in California and the incremental expansion of that status (pp.
62-69, 145-70)—from local to state government, from municipal public employees
to state residents, from limited rights and obligations to all of the state-law
rights and benefits of marriage. As Eskridge and Riano explain, and as I have
documented elsewhere,
under the pioneering vision of the ACLU’s Matt Coles working in San Francisco
and Berkeley in the early 1980s, domestic partnership became a mechanism to
expand access to healthcare for nonmarital partners—a particularly important
development as the HIV/AIDS crisis began to take its toll on the community. Early
domestic partnership policies included both same-sex and different-sex couples,
seeking both to mitigate same-sex couples’ exclusion from the rights of
marriage and to offer to all couples an alternative, nonmarital relationship status. Innovation
did not disappear in the twenty-first century, even as marriage occupied a
central role in movement advocacy. The authors recount, for example, the
legislative creation of “designated beneficiaries” in Colorado in 2009. (p.
332) While early domestic partnership ordinances were limited to intimate
cohabiting couples, designated beneficiaries need not be in an intimate
relationship and need not reside together. And whereas domestic partnership
typically offered a package of rights and responsibilities, designated
beneficiaries could choose from a list of benefits and obligations. While much of the early
organizing around adult relationship recognition was aimed at state and local
lawmakers, advocacy seeking to protect parent-child relationships was often
directed at judges in the absence of legislative reform. LGBT advocates and
their constituents not only created new forms of family recognition to accommodate arrangements that law failed
to recognize; they also adapted and repurposed existing
devices. Consider the concept of second-parent adoption, a topic that Eskridge and Riano introduce at the start of
the book through the compelling story of Jayne Rowse and April DeBoer—two
nurses who grew a family together through adoption but were unable to have the
children’s parental relationships with both women legally recognized. (p. 3) LGBT
advocates drew on the accepted concept of stepparent
adoption to protect nonbiological parents in nonmarital families. Stepparent
adoption was expressly permitted by statute or case law, but required that the
existing parent and adopting parent be married. Only then would a court not
require that the existing legal parents relinquish their rights in order for
the child to be available for adoption. Instead, the adopting parent’s spouse
need simply consent to the adoption. Same-sex couples, of
course, were excluded from marriage. Pioneering family law scholar and advocate
Nancy Polikoff helped to develop the concept of second-parent adoption in the
1980s, and LGBT lawyers around the country set to persuading sympathetic trial
court judges that they could order the adoption to promote the best interest of
the child. Today, roughly half of states expressly permit second-parent
adoption. (Unfortunately, as Rowse and DeBoer discovered, Michigan is not one
of those states.) Just
as with relationship recognition, innovation continued into the twenty-first
century. As I describe here, creative lawyers in California began to pursue parentage
judgments on behalf of same-sex couples having children through assisted
reproduction. If courts had authority to adjudicate disputed questions of
parentage, why could they not issue orders in uncontested matters declaring who
a child’s legal parents are? Sympathetic trial court judges issued judgments
establishing parentage for both genetic and nongenetic parents. Lawyers even
sought “pre-birth” judgments, ensuring that at birth the order would become
effective and ensure that both of the child’s parents were recognized as legal
parents. Innovation and
creativity continues to this day. Eskridge and Riano point to the Uniform
Parentage Act of 2017 (UPA) as a key example of family law pluralism with
respect to parent-child relationships. (p. 722) The UPA effort was guided by
LGBT leaders. Visionary Washington state senator Jamie Pedersen served as the
chair of the drafting committee and leading LGBT family law expert and scholar
Courtney Joslin served as the reporter. The UPA includes many of the mechanisms
LGBT advocates developed over decades, including pre-birth parentage judgments
in the context of assisted reproduction. The UPA also adapts a
longstanding parentage device to serve the needs of LGBT parents. Driven by
federal legislation conditioning state funds on paternity establishment
mechanisms, voluntary acknowledgments of paternity (VAPs) became the most
common way that paternity for nonmarital children is established in the U.S.
The birth mother and the man who purports to be the biological father
voluntarily sign a VAP, usually in the hospital. After a 60-day rescission
period, VAPs have the force of a judgment of parentage and are entitled to full
faith and credit. Even if the man who establishes paternity by signing a VAP is
not the biological father, he often remains the legal father—able to challenge
the VAP based only on fraud, duress, or material mistake of fact. The UPA changes
the voluntary acknowledgment of paternity
into a voluntary acknowledgement of parentage.
A VAP still can be signed by the typical different-sex couple in which the
biological father uses a VAP to establish parentage. But the VAP is now
gender-neutral and expressly includes nonbiological intended parents who have
children through assisted reproduction. For the typical female same-sex couple
who conceives a child with donor sperm, the nonbiological mother can establish
parentage by signing a VAP with the birth mother. (p. 736) Across both adult and
parent-child relationships, Eskridge and Riano illustrate the ingenuity and skill
of LGBT movement actors who adapted existing devices and developed new
mechanisms to meet the needs of families formed by LGBT people. Yet, marriage
casts a long shadow over the pluralistic family law regime that Eskridge and
Riano document. The book, after all, is titled Marriage Equality. Tomorrow, my comments
will grapple with the tensions that Eskridge and Riano explore between
developing a progressive family law agenda serving the “families we choose” and
pressing marriage as an LGBT movement priority. Douglas
NeJaime is the Anne Urowsky Professor of Law at Yale Law School. He can be
reached at douglas.nejaime@yale.edu.
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