Jun 27

Why Leaving Same-Sex Marriage to the States Won’t Work

A lot of people have taken the position that letting individual states decide whether to permit same-sex marriage is the proper course of action.  It sounds good, right?  After all, each state’s politicians will know what will work best for that particular state.  Even New Hampshire Senator Kelly Ayotte shares this view.  As U.S. senators change minds on gay marriage, Ayotte still against it | Political Scoop – WMUR Home.

But there’s one huge problem with that viewpoint–the kids.

It all comes down to the kids born to same-sex partners.  These children, just like all other children, need and are entitled to certainty about their legal parentage from infancy.

Consider the case of Baby Veronica.  Court rules for adoptive parents in Baby Veronica case.  She’s three years old and the fight regarding her parentage is still not over.  That’s an awful position for any child to be put in, whether the situation comes about as a result of an adoptive placement or from inconsistent state laws regarding same-sex marriage.

With the exception of couples using the expensive process of Reciprocal IVF or experimental mitochondrial DNA techniques, it is not possible for two same-sex parents to both be biologically related to their child.  Thus, same-sex parents rely on alternative means to establish their legal rights.  In New Hampshire, these alternative methods can include the marital presumption (your wife’s child is presumed to be your child) and stepparent adoptions.  The problem is that not all methods used to establish the legal relationship of the non-biological parent are equally firm.  When the legal relationship is established solely based upon a same-sex marriage, such as parentage based on the marital presumption, the grounds of legal parenthood are especially shaky.  While New Hampshire may recognize these legal grounds for parentage as part of its overall statutory scheme of recognizing same-sex marriages, there is no guarantee of such recognition in all other states.  And that’s not good for kids.

If the best interests of a child are truly what matters, then such a standard requires that parentage be firmly established and not subject to change when the family moves or travels to another state.

That’s why leaving the issue of same-sex marriage to the individual states won’t work.


  1. Lisa Miller 28 Jun 2013 |

    Thanks so much for pointing this out. I feel the celebration was a bit too early.

  2. Mrs. P. 28 Jun 2013 |

    Luckily for my dear sisters-in-law, we live in CT. When they start their family, my nieces and nephews will have both their mothers without legal concerns, AFAIK. But this article brings up a tremendous reason why we need a federal law granting marriage equality. If we as a society value our children, and recognize that protecting the family unit is best for kids, then we need to ensure all families are legally safe no matter how they are comprised.
    As a proud straight ally, this shows a reason we all have a vested interest in LGBTQ equality. Thank you for writing this!

  3. Catherine Tucker 28 Jun 2013 |

    Mrs. P:

    These types of laws are going to have a disparate impact on the children of lesbian couples. Gay men typically will build their families either through joint adoption of a child or surrogacy, and thus they are likely to be working with an attorney who can help them take proactive steps to best protect their families from the outset. With lesbian couples, it’s quite common for no attorney to be involved as such couples don’t need to involve the court system, or attorneys, to become pregnant. Thus, children of lesbian couples are more likely to be at legal risk than children of gay male couples.