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.