Equal protection for children of same-sex parents.

B. Children of Same-Sex Parents As a Subset of Nonmarital ChildrenToday, children of same-sex parents are in a similar position to
children of unmarried opposite-sex parents forty years ago. They
exercise no control over their parents' conduct, yet, because of
the state's imputation of immorality upon them, they suffer
concrete economic injuries.
1. Children of Same-Sex Parents Have No Control Over Their Parents
' Conduct or Their Status of Birth
Classifications that deny children of same-sex parents government
benefits do so based on an immutable characteristic--their status as
children of gays and lesbians. (163) Although most lawyers are well
aware of the concept of immutability in race-based equal protection
cases, a persistent strand of immutability principles, even if less well
known, exists in the nonmarital status cases. The Weber Court, citing a
number of cases including Brown v. Board of Education, explained that
"imposing disabilities on the illegitimate child is contrary to the
basic concept of our system that legal burdens should bear some
relationship to individual responsibility or wrongdoing." (164) The
Court expressed its view that it could not prevent the social
disapproval of children born outside of marriage; it could, however,
"strike down discriminatory laws relating to status of birth."
(165) The early immutability concepts in the non-marital status cases
also influenced the subsequent equal protection law. A year later, in a
plurality opinion, the Supreme Court relied on Weber's immutability
rationales to argue for heightened scrutiny for gender classifications.
(166)
Many in the United States believe that same-sex relationships areimmoral and run counter to traditional family values. One of the primarycontentions is that sexual orientation is a choice, not an immutablecharacteristic. This Article does not wade into this debate; it isundeniable, however, that children of gays and lesbians have no controlover their parents' conduct (or the rest of the country'sresponse to their parents' conduct). They can do nothing about thereality that their biological (or adopted) parent and that parent'ssame-sex partner (the child's nonbiological parent) decided to havea child.A central tenet of modern equal protection law is that it is unfair
to discriminate against an individual because of a trait or
characteristic derived at birth that cannot be changed. (167) The
nonmarital status cases repeatedly recognized this core principle, and
it has also been invoked in other contexts to prohibit discrimination
against children. (168) In Plyler v. Doe, school-age children of Mexican
origin brought an equal protection challenge to a Texas statute that
withheld state funds from local school districts that chose to enroll
and educate children not "legally admitted to the United States.
(169) In striking down the provision, the Supreme Court made a
distinction between individuals illegally in the United States as a
result of their own conduct and the children of these individuals. The
Court explained that these children "can affect neither their
parents conduct nor their own undocumented status," and that to
legislate against them "does not comport with fundamental
conceptions of justice." (170) As with nonmarital status children
and undocumented children, children of same-sex parents are born into or
become members of the gay- or lesbian-headed household through no
individual action on their part.
2. Imputing Immorality to the Child to Deny Basic Safety Nets Is
Impermissible
Children of same-sex parents are denied basic safety nets because
"no-protection" states morally disagree with their
parents' gay or lesbian relationships and proceed to impose their
moral judgment on the children those relationships produce.
Moral justifications invoked as a shield to insulate the
government's disparate treatment of nonmarital child litigants have
been routinely rejected as unrelated to the underlying purpose of the
government statutes in question and clearly driven by invidious
discrimination. (171) The degree of malice and bigotry directed toward
LGBT people and their families in "no-protection" states is
nothing short of alarming. Bob Barr, the Republican Congressman from
Georgia, for example, sponsored the antigay Defense of Marriage Act,
saying: "The flames of hedonism, the flames of narcissism, the
flames of self-centered morality are licking at the very foundation of
our society, the family unit." (172) In the neighboring state of
Alabama, Roy Moore, then Chief Justice of the state's supreme
court, openly advocated that the death penalty should be leveraged as a
way to keep children away from LGBT people, even their parents. In a
lengthy concurrence in a custody case involving a lesbian mother, Moore
asserted that "[t]he State carries the power of the sword, that is,
the power to prohibit [homosexual] conduct with physical penalties, such
as confinement and even execution. It must use that power to prevent the
subversion of children toward this lifestyle." (173)
Importantly, it's not just in states in the Deep South wheresuch antigay bias is spoken so freely and forcefully. The discussionoccurs at a national level as well. Indeed, the two organizations thatlead the "traditional family" movement on the nationalstage--the American Family Association (AFA) and the Family ResearchCouncil (FRC)--are so virulent in their homophobia that they have bothbeen deemed "anti-gay groups." (174) In 2010, Bryan Fischer,AFA director of issue analysis for government and public policy, claimedthat "[hjomosexuality gave us Adolph Hitler, and homosexuals in themilitary gave us the Brown Shirts, the Nazi war machine and six milliondead Jews." (175) That same year, FRC President Tony Perkins wrote:"While activists like to claim that pedophilia is a completelydistinct orientation from homosexuality, evidence shows adisproportionate overlap between the two .... It is a homosexualproblem." (176)Even in more comparatively moderate tones, government actors
consistently deny gays and lesbians the right to marry in reliance on
"traditional" family values, such as a preference for raising
children within a marriage, exposing children to dual-gender parenting
roles, and encouraging procreation. These arguments, as the next section
explains, are also driven by moral values about families. While
opponents of gay marriage might successfully employ those arguments
about traditional families to deny gays and lesbians the right to marry,
those opponents cannot deploy those arguments to deny children of gays
and lesbians rights equal to those enjoyed by their similarly situated
peers.
The Weber Court explained this clearly in a now oft-quoted
statement:

The status of illegitimacy has expressed through the ages society's
condemnation of irresponsible liaisons beyond the bonds of
marriage. But visiting this condemnation on the head of an infant
is illogical and unjust. Moreover, imposing disabilities on the
illegitimate child is contrary to the basic concept of our system
that legal burdens should bear some relationship to individual
responsibility or wrongdoing. Obviously, no child is responsible
for his birth and penalizing the illegitimate child is an
ineffectual as well as an unjust--way of deterring the parent.
(177)
The nonmarital status cases consistently held that children cannot
be punished based on moral disagreement with their parents' conduct
or relationships.
3. Children of Same-Sex Parents Suffer Concrete Economic Injuries
The children of same-sex parents suffer concrete economic (and
non-economic) losses. Persistent themes in the nonmarital status cases
are that children should be protected and our basic system of benefits
and property rights is designed to afford basic government safety nets
to children when necessary, like in the event of family transitions or
crisis. (178) The Levy Court asked a series of questions that went
directly to this concern in the children's claim for wrongful death
recovery: "[w]hen the child's claim of damage for loss of his
mother is in issue, why, in terms of 'equal protection,'
should the tortfeasors go free merely because the child is illegitimate?
Why should the illegitimate child be denied rights merely because of his
birth out of wedlock?" (179) The court also inquired that if a
nonmarital child is "subject to all the responsibilities of a
citizen ... [h]ow under our constitutional regime can he be denied
correlative rights which other citizens enjoy?" (180) Weber also
raised such concerns about the economic interest of children seeking
workers' compensation proceeds after the death of their father,
noting that "[a]n unacknowledged illegitimate child may suffer as
much from the loss of a parent as a child born within wedlock or an
illegitimate later acknowledged." (181)
Similarly, in New Jersey Welfare Rights Organization v. Cahill,
(182) the Supreme Court turned to the economic injury to children as its
justification for applying heightened review. New Jersey's
"Assistance to the Families of the Working Poor" program
limited benefits to households comprised of opposite-sex married couples
with "legitimate" children. (183) The court found the law
unconstitutional, because the benefits under the welfare program were as
"indispensable to the health and well-being of illegitimate
children as to those who are legitimate." (184) The very notion
that some children are worthy of economic safety nets and others are not
because of their status as children of "immoral" unmarried
parents struck at the heart of prohibited disparate treatment under the
equal protection of the laws. (185)
As Section II detailed, children of same-sex parents in
"no-protection" states are denied access to a host of state
(and federal) benefits. (186) The benefits that children of same-sex
parents are denied places them at a social and economic disadvantage in
relation to their opposite-sex parented peers and exposes them to
unwarranted social and economic hardship.
In conclusion, children of same-sex parents are in a similar
position to that of children of opposite-sex unmarried parents at the
beginning of the civil rights movement--they exercise no control over
their parents' conduct, yet suffer concrete economic injuries
because of moral objections to their parents' relationships.
Children of same-sex parents are identical to, or are a subset of,
nonmarital status children, and their disparate treatment warrants
intermediate scrutiny. (187)
The remaining sections of the Article explore the potential state
justifications put forth to defend government classifications that
discriminate against children of unmarried same-sex parents, and offers
a legal mechanism that states may adopt to avoid the disparate treatment
of children of unmarried same-sex parents.
IV. THE LEGAL EXCLUSION OF CHILDREN OF SAME-SEX PARENTS TO
"PRESERVE MORAL VALUES"
As explained in the introduction to this Article, there has yet to
be an equal protection challenge brought by a child of same-sex parents
denied government benefits enjoyed by children of opposite-sex parents;
therefore, one can only speculate about the justifications that
"no-protection" states might invoke. However, it is possible
to glean from both the same-sex marriage litigation to date and the
historical justifications raised in the nonmarital status cases the
types of arguments that may be advanced. In the legal battles over
same-sex marriage and gay adoption, (188) the most frequent arguments
deployed are based in traditional notions of family life, including
several variations on the theme that child rearing is optimal when a man
and a woman are present. (189) Whatever the rationales may be, the
denial of government benefits to children of same-sex parents will be
difficult to justify as "substantially related to a sufficiently
important governmental interest." (190)
A. Preserving "Family Values" Arguments
Family values arguments fall roughly into the following three
categories:
First, encouraging children be born within marriage because
children raised by married parents are preferable to children raised by
unmarried parents. This rationale focuses on encouraging the rearing of
a biological child within a marriage, as opposed to outside of it. (191)
States argue that they are justified in encouraging marriage for
opposite-sex couples who have relationships that result in children
because it is preferable to having children raised by unmarried parents.
(192)
Second, encouraging children be born within marriage because of the
unique ability of opposite-sex couples to "accidentally" have
children. A variation on the first argument: states are justified in
encouraging opposite-sex marriage because these couples' sexual
relations can lead to pregnancy accidentally, something that cannot
happen in same-sex relations. (193) The unique heterosexual ability to
have children accidentally creates a state incentive to encourage and
promote stability in marriage for these children. (194) In Hernandez v.
Robles, (195) the same-sex marriage ban challenge in New York, the
state's highest court clarified this point: "The Legislature
could find that this rationale for marriage does not apply with
comparable force to same-sex couples. These couples can become parents
by adoption, or by artificial insemination or other technological
marvels, but they do not become parents as a result of accident or
impulse." (196) The court theorized that this potential accident or
impulse on the part of opposite-sex couples creates a greater danger
that children will be raised in "unstable" homes than with
same-sex couples. (197) It is important to note that New York now allows
same-sex marriage; several "no-protection" states, however,
continue to maintain this accidental procreation argument to deny
same-sex couples the right to marry. (198)
Third, encouraging children be raised in dual-gender households
with a mom and a dad. Another potential government rationale that may be
advanced is that there is a legitimate state interest in treating
children of same-sex couples differently than children in opposite-sex
couples, because "children thrive in opposite-sex marriage
environments." (199) States have a legitimate interest in
encouraging the "optimal" family structure of a home with both
a mother and father to provide gender role-modeling.
In Lofton v. Secretary of the Department of Children and Family
Services, (200) a challenge to Florida's ban on homosexual
adoption, the Eleventh Circuit explained that the regulation was
permissible under the Equal Protection Clause because it was rationally
related to the best interests of Florida's adopted children to
place them in homes with married heterosexual parents. (201) Florida,
the court found, had a legitimate interest in encouraging the
"optimal" family structure of a home with both a mother and
father, because of the "vital role that dual-gender parenting plays
in shaping sexual and gender identity and in providing heterosexual role
modeling." (202) The court dismissed the plaintiffs' argument
that Florida's role-modeling rationale was not rationally related
to its objectives of dual-gender parenting, given that the state allowed
single heterosexual persons to adopt. (203) The Court explained that,
unlike gays and lesbians, heterosexual singles have a greater
probability of eventually establishing a stable dual-gendered household.
(204)
The moral values justifications will suffer the same constitutional
faults as similar moral-values arguments raised and rejected forty years
ago in the nonmarital status cases. (205) Each rationale has a common
theme with the now unconstitutional nonmarital status classifications
rooted in the "preservation of the traditional family"
arguments. From the standpoint of the child, the government cannot
demonstrate how these justifications are substantially related to
sufficiently important governmental interests of providing financial
stability to children. (206)
1. The Lack of a Nexus to Financial Stability
State actors will be unable to offer a nexus to government action
denying children of same-sex parents their non-biological parent's
workers' compensation benefits, social security, or other safety
nets. In striking down the workers' compensation provision in Weber
v. Aetna Casualty & Surety Co., (207) the Supreme Court explained
that the decedent father had as much affinity for his nonmarital
children as he did for his four children born within his marriage, and
that all of his children had lived with him and were "equally
dependent upon him for maintenance and support." (208) The Weber
Court made it clear that placing the state's moral condemnation of
the child's parents "on the head of an infant is illogical and
unjust.... Obviously, no child is responsible for his birth and
penalizing the illegitimate child is an ineffectual--as well as an
unjust--way of deterring the parent." (209)
An example in the context of a child of same-sex parents may be
instructive. Assume that Linda is the child of a lesbian couple, Mary
and Jan. They live in a "no-protection" state. Together they
planned for and followed through on the necessary steps via alternative
insemination to have Linda. Mary is the biological mom, Jan is the
non-biological mom. The sperm donor's parental rights were
terminated. Mary and Jan have both been equal participants in raising
Linda. Jan, a high school principal, contributes $60,000 a year in
income to the household. Mary works part-time in a bookstore and
contributes $15,000 a year in income. When Linda is 15 years old, Jan is
killed by a drunk driver.
In a "no-protection" state, Linda would not be able to
recover for economic losses to the household and for her emotional
trauma from the tortious death of Jan because she is not legally
recognized as Jan's child. Wrongful death claims allow for recovery
of the pecuniary loss to a person for the negligent, reckless, or
intentional death of a loved one." Increasingly, states permit
plaintiffs to recover for emotional or psychological losses as well.
(211) Eligibility to sue varies by state, however, and most limit
wrongful death recovery to the deceased's spouse, children,
parents, or siblings. (212) The damage--both economic and emotional is
clearly present in this situation after a fifteen year functional
parent-child relationship. To deny the child recovery based on the
state's moral objection to same-sex relationships is contrary to
the basic principles of wrongful death actions and tort law--that the
dependent child is placed in the position she would have been in had the
tortious act never occurred. Instead, the status quo assures that Linda
(and Mary) will suffer major economic and emotional hardship. Also, the
failure to recognize Linda s claim grants the negligent defendant a
windfall. This result is also contrary to basic equal protection
principles--ignoring the fifteen-year parent-child relationship because
of moral disapproval and leaving the child without financial
compensation for her losses (both economic and emotional) places the
child of same-sex parents at a distinct disadvantage in relation to his
or her peers with opposite-sex parents.
A child like Linda would be the modem-day equivalent of the
children in Levy v. Louisiana, wherein the state of Louisiana denied the
"right to recover for the tortious death of a mother because the
children were not legitimate, insofar as morals and general welfare ...
discourage[] bringing children into the world out of wedlock."
(213) To deny Linda these government resources designed to assist
children in exactly these sorts of situations does not relate to the
objectives of wrongful death recovery. As the Levy Court explained:

Legitimacy or illegitimacy of birth has no relation to the nature
of the wrong allegedly inflicted on the mother. These children,
though illegitimate, were dependent on her; she cared for them and
nurtured them; they were indeed hers in the biological and in the
spiritual sense; in her death they suffered wrong in the sense that
any dependent would. (214)
In the context of children with same-sex parents like Linda, the
non-biological same-sex parent nurtures and cares for the child and the
child is dependent upon the parent, just as any opposite-sex family
configuration, whether rooted in a biological connection or not. To deny
Linda the wrongful death recovery because of moral disagreement with the
fact that she has two mothers is to do so on the basis of invidious
animus.
The insufficiency of these family values arguments has been
recognized in state supreme court decisions that have extended marriage
equality to gays and lesbians. In 2009, the Iowa Supreme Court struck
down its state prohibition on same-sex marriage in reliance, in part, on
how marriage bans unjustifiably impose economic and psychological
injuries on children within same-sex unions. After deciding that the
level of scrutiny applicable to gays and lesbians would be intermediate
scrutiny, the court concluded that the state justifications for
excluding gays and lesbians from marrying were not substantially related
to the objective that children be raised in an "optimal"
environment with a mother and a father. The court rejected this state
objective as both under and overinclusive:

If the statute was truly about the best interest of children, some
benefit to children derived from the ban on same-sex civil
marriages would be observable. Yet, the germane analysis does not
show how the best interests of children of gay and lesbian parents,
who are denied an environment supported by the benefits of marriage
under the statute, are served by the ban.
Similarly, in the landmark ruling in Goodridge v. Department of
Public Health, (216) the Supreme Court of Massachusetts found the
state's refusal to grant marriage licenses to same-sex couples to
violate the state constitution's equal protection provision. (217)
The court rejected the state s justifications for prohibiting same-sex
marriage--procreation and child rearing--under the most minimal rational
basis inquiry. First, the statute failed to be rationally related to
providing a "favorable setting for procreation" because
fertility and procreation are not prerequisites to obtaining a marriage
license. (218) Second, limiting marriage to opposite-sex couples failed
to relate to the state justification of ensuring that children are
raised in the "optimal" setting with one parent of each sex.
The court explained that the demographics of the American family make it
difficult to describe the average family and extending marriage to
same-sex couples would offer a more stable family structure for the
children in their households. (220)
"No-protection" states fail to recognize the changing
demographics of the American family. Once again, these state actors are
driven by moral judgment and invidious animus and, at bottom, they seek
to force citizens to conform to particular behaviors--opposite-sex
marriage and punish children to achieve that objective. The rationales
articulated, such as the "need" for a child to be raised in a
house with a married man and woman, is merely another attempt by the
state to ensure the "legitimacy" of children. (221) As
Professor Solangel Maldonado observes, the marriage/procreation
arguments used to deny same-sex couples the right to marry "serve
to reinforce societal disapproval of nonmarital families and
children." (222) This has already been repeatedly struck down as
impermissible, however. A state "may not invidiously discriminate
against illegitimate children by denying them substantial benefits
accorded children generally. (223) As with children of married
opposite-sex parents, children of same-sex parents in
"no-protection" states are entitled to be placed on equal
footing with marital children.
Further, although beyond the scope of this Article, the rationale
that encourages raising children in "dual-gendered" households
based on impermissible moral judgment may violate equal protection
doctrine that prohibits gender discrimination. Gender stereotypes about
the roles of men and women in parenting responsibilities are also
impermissible rationales to deny a child of same-sex parents the equal
benefits enjoyed by children of opposite-sex parents. (224)
The equal protection jurisprudence is clear that the Constitution
does not permit the government to punish innocent children to express
its moral condemnation of their parents' relationships. Such
classification "reflect[s] deep-seated prejudice rather than
legislative rationality in pursuit of some legislative objective."
(225) The "traditional family preservation arguments" of
encouraging children be raised by a man and a woman are unrelated to the
very purpose of the state benefits and provisions designed to protect
children.
V. ADMINISTRATIVE EFFICIENCY AND THE INSURMOUNTABLE BARRIER
DOCTRINE
In addition to invoking moral judgments to prevent children of
same-sex couples from recovering government benefits from their
non-biological parents, states may allege that such denials are
necessary to ensure the efficient administration of government benefits
and prevent spurious claims. The administrative efficiency and
prevention of spurious claims justifications are likely to fail for two
significant reasons.
First, it is morally and legally unacceptable for the government to
enact blanket exclusions of nonmarital children to basic government
safety nets. (226) As it stands now, as explained in Part II.A, children
of same sex parents in "no-protection" states face an
insurmountable barrier--they are completely locked out of access to
these benefits. "No-protection states fail to provide any legal
channels for the parents or the child to establish a legal relationship
with each other. This legal barricade prevents children from accessing
government benefits and allows the state to permanently disenfranchise
them without ever discovering whether the speculative parade of
horribles will actually occur when it comes to proving legal parentage.
Second, by virtue of the ways in which same-sex couples (who are the
focus of this Article) become parents, it may, in fact, be easier to
weed out fraudulent cases than in traditional opposite-sex paternity
cases. This section concludes with potential options that states may
turn to in removing the insurmountable barrier.
A. The Insurmountable Barrier Doctrine
Children of same-sex parents face an insurmountable barrier to
accessing basic government benefits, a barrier erected by
"no-protection" states. It is impossible for the
non-biological same-sex parent to establish a legal relationship to the
child: same-sex couples cannot marry; the same-sex non-biological parent
is not related by blood; gays and lesbians cannot adopt (as couples);
and there is no alternative legal mechanism for a same-sex
non-biological parent to voluntarily acknowledge or demonstrate an
intent to parent their same-sex partner's biological child. It is
also impossible for the child to obtain a legal relationship to the
non-biological same-sex parent. The government cannot "create an
insurmountable barrier" to the children of same-sex parents to
government benefits and property rights. (227)
A central tenet of the nonmarital status cases is that the
difficulty in proving paternity does not justify blanket exclusions to
nonmarital children. In Labine v. Vincent[TM] despite the joint
acknowledgment by the unmarried mother and father that Rita Vincent was
their natural child, the Supreme Court held that it was insufficient to
give Rita a legal right to her father's inheritance. (229) In
explaining its position, the Court argued that Rita Vincent's equal
protection argument was misplaced because, unlike Levy, this was not a
situation in which the state "created an insurmountable
barrier" to the illegitimate child because the father could have
legitimated the child a number of ways, including by marrying the
mother, formulating a will, or stating his desire to legitimate his
daughter in an acknowledgment. (230) Although Labine has been criticized
for its lackluster equal protection analysis, it did indicate that a
baseline exists below which states cannot tread: states cannot create an
insurmountable barrier to a nonmarital child to establish a legal
relationship to the father. (231)
In Trimble v. Gordon, (232) the Supreme Court clarified the
"insurmountable (or impenetrable) barrier" doctrine. In
Trimble, Deta Mona Trimble challenged an Illinois statute that permitted
marital children to inherit by intestacy from both their mothers and
fathers, but limited the inheritance of nonmarital children only to
their mothers. (233) Deta Mona lived with her unmarried opposite-sex
parents. (234) Her father openly acknowledged her as his child and,
prior to his death, he obtained a court order of paternity. (235)
Nevertheless, the Illinois Probate Court upheld the constitutionality of
the Illinois statute and denied Deta Mona inheritance of his estate.
(236)
In reliance on Labine, the Illinois Supreme Court justified Deta
Mona's exclusion from inheritance because nonmarital children were
not subjected to an insurmountable barrier preventing them from sharing
in their fathers' estates--fathers, including Deta's father,
could leave wills to ensure their children's inheritance.
The Supreme Court rejected the state's preservation of family
relationships arguments and the state's articulated interest in the
efficient method of property distribution. Clarifying its position on
the insurmountable barrier doctrine from Labine, the Court held that
Illinois' interest in the difficulty of proving paternity and the
risk of spurious claims did not support the complete prohibition on
inheritance from the intestate father. (237)
The Supreme Court recognized that even when a constitutional
violation is invoked, the Court must tread lightly to accord substantial
deference to a state's statutory scheme. States, however, must
demonstrate a nexus between the law and its stated objectives. The Court
said, "[Problems [of proof] are not to be lightly brushed aside,
but neither can they be made into an impenetrable barrier that works to
shield otherwise invidious discrimination." (238) Illinois gave
inadequate consideration to the connection between the statute and the
goals of accuracy and efficiency of the disposition of property because
a middle ground existed between complete exclusion and a case-by-case
determination. (239) According to the Trimble Court, the inheritance
rights of an entire class of nonmarital children could be recognized
without threatening the accurate and efficient settlement of estates.
(240) In fact, Deta Mona Trimble was one of those children. (241) By
excluding an entire category of easily identifiable nonmarital children,
the statute failed to be "carefully tuned to alternative
considerations" and engaged in broad discrimination between marital
and nonmarital children. (242) As such, the statute extended beyond its
asserted purposes.
As for Illinois' interpretation of Labine that the statute was
justifiable because there was no insurmountable barrier--the father
could have executed a will--the Court clarified its position:
"Traditional equal protection analysis asks whether this statutory
differentiation on the basis of illegitimacy is justified by the
promotion of recognized state objectives," and "[i]f the law
cannot be sustained on this analysis, it is not clear how it can be
saved by the absence of an insurmountable barrier to inheritance under
other and hypothetical circumstances." (243) The Court also made it
clear that by reframing the focus on other means to inheritance, the
analysis lost sight of the essential question regarding the
constitutionality of the discrimination against nonmarital children in
inheritance law. (244) If the father had executed a will, the case would
no longer involve intestacy law. (245) The state attempted to argue that
the absence of an insurmountable barrier alone would not serve as a
defense or justification to treat marital and nonmarital children
differently, particularly if the other ways to obtain the right or
benefit advanced are through other legal schemes not at issue in the
case.
The Trimble Court refocused the analysis of the disparate treatment
of nonmarital children on whether such treatment is justified by state
objectives. The presence or absence of an impenetrable barrier, however,
is not the ultimate question. Consistent with the foundation set by
Labine, the presence of an insurmountable barrier may serve as proof of
a state's invidious animus if it includes categories of children
denied access to government benefits when they are easily identifiable
and pose no proof problems. (246)
In "no-protection" states, complete exclusion continues
to exist for children of same-sex parents. All children of same-sex
parents are prohibited from establishing a legal relationship with their
non-biological parent and are denied government benefits even though,
for a broad category of children, the relationship between them and
their nonbiological parent can be easily established. (247) For example,
in Boseman, there was no proof problem in determining that John's
non-biological mother sought to be his legal parent. (248) There were
ample indicia of her intent to parent John, including a court order
establishing legal parentage. (249)
Consistent with the nonmarital status cases, the concerns of proof
problems with children of same-sex parents establishing a legal
relationship to the non-biological same-sex parent does not justify an
insurmountable barrier to shield invidious discrimination. To avoid the
constitutional infringement of children with same-sex parents, the first
step is for states to remove the insurmountable barrier by creating
channels for establishing legal parentage. As explained in Trimble, it
is not the role of federal courts to dictate the exact legal channel
that states adopt to remove the insurmountable barrier. In that vein,
the next section will offer some options drawn from well-known family
law scholars and from practices in other states.
B. The State Options to Remove the Insurmountable Barrier
To avoid constitutional infringement of the equal protection rights
of children with same-sex parents, "no-protection" states must
avoid the blanket exclusion to the state-level recovery of benefits by
creating a legal framework that permits the creation of a legal
relationship between a child and his non-biological same-sex parent.
The point of this Article is not to advocate for a particular
avenue, but rather to argue that the failure to offer any legal
mechanism for the creation of a legal relationship between a child and
its non-biological same-sex parent is an equal protection violation. The
legal channels states select are within each state's purview based
on its policies, practices, and existing procedures dealing with
children and parentage. (250) Fortunately, as a result of same-sex
rights developed in other states and legal scholarship, there are a
number of models to which states may look for guidance. This Article
will briefly touch upon some existing legal channels, including
voluntary acknowledgment of parentage, second-parent adoption, and
marriage/civil unions. None of these models are free from future
litigation challenges, but raising these options at least opens a
dialogue that works towards equal access for children of same-sex
parents.
1. Voluntary Acknowledgment of Paternity/Parentage
As explained earlier in the Article, every state allows unmarried
opposite-sex couples to establish a legal parent-child relationship
through a voluntary acknowledgment of paternity (VAP), a simple
mechanism available at the hospital immediately before or after birth of
the child. Once an unmarried couple signs an affidavit that voluntarily
acknowledges that the male signing the form is the father of the child,
he is assigned all rights and responsibilities as they relate to the
child. (251) The VAP--Voluntary Acknowledgment of Parentage--process
could be extended to same-sex couples. (252)
This option may be the least intrusive and least costly to states,
parents, and children. Hospitals in all states already have procedures
in place whereby willful parties can establish parentage
responsibilities and rights immediately before or after birth. For a
non-biological, same-sex parent, completing such a form requires no
lawyers, no courts, no cost--only her presence and the consent of the
birth parent. The VAP is also recognized from state-to-state as granting
legal parentage. (253) Further, in more conservative jurisdictions, this
pathway to parentage would allow states to compel economic
responsibility for children without "endorsing" the
relationship of the same-sex couple.
Still, there are downsides to voluntary acknowledgment of parentage
as a single avenue, two of which will be mentioned here. First, the
window in which a non-biological parent may establish parentage status
is extremely narrow. What if a non-biological parent clearly
demonstrated an intent to parent before birth, such as cases when both
parties consented to and participated in the creation of the child
through alternative insemination and provided pre-natal care, yet split
up with the biological parent before the child is actually born? Should
the child be denied legal access to the intended co-parent? Second,
voluntary acknowledgment of parentage may fail to offer parity for gay
men. Situations that involve a surrogate mother and two gay men, one the
sperm donor and the other non-biologically related, for example, may be
complicated by the terms of, or legal issues related to, surrogacy.
2. Other Forms of Parental Acknowledgment
a. Intent to Parent Statutes
In 2009, the District of Columbia became the first place in the
United States where parentage of a non-biological, same-sex parent can
be established at insemination. (254) The Domestic Partnership Judicial
Determination of Parentage Act of 2009 "provides that when a woman
bears a child conceived by artificial insemination, and her spouse or
unmarried partner consents in writing to the insemination, the
consenting spouse or partner is a legal parent." (255) Although
husbands have always been the presumed parent of a child conceived
through artificial insemination, this law extends that right regardless
of marital status or gender of the non-biological parent. Unfortunately,
the law seems only to apply to female same-sex couples, as surrogacy
remains illegal in the District. (256) New Mexico was the first state to
create a similar "insemination-intent" pathway to parentage
that extends to same-sex couples, not just heterosexual, married men who
always were presumed to be a parent. (257) The benefits of such statutes
revolve primarily around expediency--for the state, the non-biological
parent and the child--and the allowance for the establishment of
parentage before birth. (258) It remains unclear, however, how such
statutes could be best applied to gay men involved in surrogacy births.
(259) To get around such limitations, states might consider drafting
statutes less dependent on particular methods of reproductive assistance
and with greater emphasis on defining a more inclusive parental
presumption. (260)
b. "De facto " Parental Status
At least ten states, including Washington, California, Maine,
Massachusetts, New Jersey, and Wisconsin, allow a person without a
biological or otherwise legal relationship to a child to petition for
"de facto" parentage status on the basis of a relationship
between the adult and child. (261) The criteria for establishing
"de facto" status vary by state, and some jurisdictions are
inclusive. (262) What is nearly universal in court actions related to
assignments of "de facto" parentage status is that the
non-biological parent must spend a significant amount of time parenting
the child before "de facto" parental status can be assigned.
Benefits to "de facto" avenues include the allowance of a
longer window in which a co-parent may seek parenting status and also
their gender-neutral nature. Gay men, lesbians, and heterosexual men and
women would all have access to this process. Further, "de
facto" approaches "create parental status, without
necessitating adoption, for a person who does not plan for a
child's birth or adoption but comes into the child's life at a
later date." (263) The downsides here include the significant
period of time during which the child is left unprotected, in terms of
her legal access to the intended second parent, the extent to which this
status covers all benefits identified earlier, and the significant costs
associated with any court proceeding, which may erect a barrier for some
parents without robust financial means. (264)
3. Second-Parent Adoption
In sixteen states and Washington, D.C., a child born to one legal
parent may be adopted by another same-sex adult with the consent of the
legal parent. (265) The second-parent adoption affords the second parent
all of the rights and responsibilities of legal parenthood.
Second-parent adoptions allow the non-biological parent of the child to
become a legal parent alongside a birth mother or birth father. (266)
Among the benefits of second-parent adoption is the reality that it
protects a child's legal access to an intended parent, whether or
not the child's parents can--or choose to--get married, "civil
unioned," or legally "partnered." Further, it is
gender-neutral in its approach, fully benefiting gay men and lesbians,
along with their unmarried opposite-sex counterparts. (267) Still,
second-parent adoptions are far from perfect as a single avenue toward
parentage. (268) As Professor Nancy Polikoff powerfully explains:

[R]ecognition of a child's family should not depend upon the
family's access to court proceedings that require a lawyer and take
two precious and limited commodities--time and money. The
nonbiological mother and her child also should not be legal
strangers during the inevitable period of time it takes to obtain
an adoption decree. (269)
4. Domestic Partnerships, Civil Unions and Marriage
One legal route a state may offer children (and their parents) in
same-sex families is access to formal domestic partnerships, civil
unions, and marriage. Nine states provide recognition to same-sex
partners through domestic partnerships laws or civil unions. (270)
Another seven states and the District of Columbia allow same-sex couples
to marry. (271) In all of these jurisdictions, same-sex couples have
rights and legal protections parallel to those of opposite-sex married
couples, and the same-sex spouse should receive the parentage
presumption that a child born into the union is the child of both
parents. (272) Still, marriage or its legal equivalent is not a panacea.
Many same-sex parents may choose not to get married,
"unioned," or legally "partnered." This certainly
holds time for many opposite-sex couples who have children together. In
this way, formally recognizing same-sex couples--through domestic
partnerships, civil unions or marriage--may still leave some children of
gay and lesbian parents vulnerable. States should seek to ensure that
children of unmarried same-sex couples experience treatment equal to
that of married same-sex and opposite-sex couples. (273) Presumably, the
prohibition on treating nonmarital children differently than marital
children should apply in this context, although this area of the law in
the context of same-sex parents has yet to be explored. In same-sex
marriage states, second-parent adoptions and other avenues to establish
parentage need to remain available.
5. Legal Channels for Children
The law provides methods for children with opposite-sex parents to
seek the establishment of paternity on their own behalf. Importantly,
paternity issues for children with opposite-sex parents are not resolved
on the sole criteria of a genetic relationship between the child and
father. Indeed, the law affords a much broader interpretation of
parenthood within paternity issues. (274)
States should consider the development of similar pathways for
children of same-sex couples to establish a parentage connection. The
reality that same-sex couples cannot have children
"accidentally" and must plan thoroughly to do so lends itself
well to the creation of a legal test to demonstrate a non-biological
parent's original consent and intent for which he or she should be
legally responsible in order to protect the best interests of the child.
There has been very little discussion of a parallel system for children
of same-sex parents because the first generation of cases has focused
simply on getting rights for the parents and their children. This will
certainly be a necessary remedy as the issues and cases evolve.
6. Preventing Spurious Claims
In Hernandez v. Robles, the same-sex marriage ban challenge in New
York, the court opted to exclude same-sex couples because, in part,
unlike opposite-sex couples, they cannot conceive
"accidentally." (275) The court essentially treated the
advanced planning of gays and lesbians as a negative quality of their
parenting and child-rearing capabilities. In the context of establishing
parental connections between children and their non-biological parents,
however, such planning is anything but a negative. Indeed, the fact that
gays and lesbians must be purposeful--very purposeful--about how and
when they bring children into the world severely undercuts the dangers
of spurious claims. Couples like Melissa Jarrell and Julia Boseman
(John's same-sex parents), and Eva Kadray and Camille Caracappa
(Nicolaj's same-sex parents) went through a number of detailed
steps and extensive planning to seek recognition. Even if the couple
splits up, as did Jarrell and Boseman, the steps taken by the gay or
lesbian couple to become parents offer sufficient indicia to assess
whether the non-biological parent assumed parenting rights and
responsibilities of a child. Indeed, the actions of the non-biological
parent and the birth mother or birth father leading up to, and beyond,
conception and birth provide clear indications of both parties'
intent and consent, and a clear basis for a child to possess
expectations of both of his or her parents.
This is not to say that there are not, and will not be, times when
it is less than clear whether an individual from a same-sex relationship
intended to parent. In Elisa B. v. Superior Court, for example, the
district attorney sought to establish parentage between children and a
nonbiological parent after the birth mother applied for public
assistance.' The court concluded that Elisa, the non-biological
parent, "both received the children into her home and held them out
as her natural children, had she been a man, this would have made her a
presumed father."' In instances such as this, when a
non-biological parent is rejecting his or her standing as a parent,
sufficient indicia of intent to parent--or the complete absence of
them--can make ultimate determinations of parentage more clear. Again,
when gays and lesbians plan, as they must, to bring a child into the
world, a record of that planning often will be created.
In sum, this Article asserts that government-sponsored
discrimination against children of same-sex parents violates the
children s equal protection of the laws because neither government moral
preservation arguments nor administrative efficiency arguments are
"substantially related to a sufficiently important government
interest" as required by intermediate scrutiny. (279) Further,
although beyond the scope of the focus of this Article, denying children
basic safety nets because of their parents' (unmarried) same-sex
relationship is likely to fail rational basis as well. The exclusion of
children of same-sex parents in "no-protection" states offers
a significant body of evidence to draw upon in demonstrating that the
denials are driven by invidious animus. (280)
VI. CONCLUSION
In 1944, the Virginia Supreme Court, in Brown v. Brown, (281)
upheld a lower court denial of Jacqueline Brown's request for child
support from her father because, consistent with common law, "a
bastard was considered as kin to no one, and was, therefore, incapable
of being the heir of any person. No inheritable blood flowed through
[her] veins." (282) The Court also summarily rejected her
Fourteenth Amendment challenge as having "no merit." (283)
Twenty-two years later, in Levy v. Louisiana, (284) the U.S.
Supreme Court drew a line in the shifting sands of the culture wars and
refused to allow children to be the object of government-sponsored
discrimination in its efforts to regulate adult relationships. As a
society, we look back on the treatment of nonmarital children and are
shocked by the callous disregard for them and the limited notion of who
constitutes a "parent."
Today, children of same-sex parents and society are at a similar
crossroads. As this Article has demonstrated, children of same-sex
parents
are denied important economic safety nets--safety nets that
children of married parents obtain as a matter of course--because of the
state's imputation of morality upon them. Such government-sponsored
discrimination is not justifiable on the basis of preserving traditional
family values or to ensure administrative efficiency. Somewhere in
middle America, there is a child of same-sex parents who has been denied
a government benefit and deserves redress from this violation of her
equal protection of the laws under the Fourteenth Amendment. Let's
hope she need not wait two decades, as did Jacqueline Brown, for the law
to catch up with what she already knows is fair.
(1.) Many scholars have laid the foundation for the approach taken
in this Article. See, e.g., Harry D. Krause, Equal Protection for the
Illegitimate, 65 Mich. L. Rev. 477 (1967); Harry D. Krause,
Illegitimacy: Law and Social Policy (1971); Barbara Bennett Woodhouse,
Hatching the Egg: A Child-Centered Perspective on Parents' Rights,
14 CARDOZOL. Rev. 1747 (1993); Gilbert A. Holmes, The Tie that Binds:
The Constitutional Right of Children to Maintain Relationships With
Parent-Like Individuals, 53 Md. L. Rev. 358 (1994).
(2.) See Lewis A. Silverman, Suffer the Little Children: Justifying
Same-Sex Marriage from the Perspective of a Child of the Union, 102 W.
VA. L. Rev. 411, 412 (1999) ("The preponderance of the dialogue
about same-sex marriage concentrates on the adult partners and their
derivative benefits from the relationship; precious little focus is
given to the rights of a child who may be a product of a same-sex
relationship.").
(3.) In light of the Supreme Court's ruling in United States
v. Windsor, 133 S. Ct. 786 (2012), children in marriage equality states
are now eligible for both state and federal benefits. This does not
significantly change the plight of children in "no-protection"
states as discussed in this Article. Windsor was decided as this Article
moved to publication. For a more complete discussion of Windsor and its
effects, see Catherine E. Smith, Windsor's Progeny (forthcoming)
(on file with author).
(4.) See Vamum v. Brien, No. CV5965, 2007 WL 2468667, at *46 (Iowa
Dist. Aug. 30, 2007), aff'd, 763 N.W.2d 862, 872 (Iowa 2009). See
also In re Doe, 2008 WL 5006172 (Fla. Cir. Ct. 2008).
(5.) See Levy v. Louisiana, 391 U.S. 68, 72 (1968) (holding, in an
action brought on behalf of nonmarital children for the wrongful death
of their mother, that it was "invidious to discriminate against
[the children] when no action, conduct, or demeanor of theirs is
possibly relevant to the harm that was done the mother").
(6.) Throughout this Article, the author uses the term
"nonmarital children," and will only use the term
"illegitimate" when quoting cases or using the term in a
historical sense.
(7.) A party has a direct "cause of action" where the
factual situation underlying the action entitles the party to maintain
an action in a
judicial tribunal. Black's Law Dictionary 251 (9th ed. 2009). A
derivative action is "[a] lawsuit arising from an injury to another
person, such as a husband's action for loss of consortium arising
from an injury to his wife caused by a third person." Id. at 509.
This Article argues that the children of same-sex couples have a direct
cause of action for economic injuries suffered by them, as opposed to a
claim derived from an injury to their parent(s). Issues of standing are
beyond the scope of this Article.
(8.) See Linda L. Elrod, A Child's Perspective of Defining a
Parent: The Case for Intended Parenthood, 25 BYU J. Pub. L. 245, 248
(2011); Kathy T. Graham, Same-Sex Couples: Their Rights as Parents, and
Their Children's Rights as Children, 48 Santa Clara L. Rev. 999,
1002, 1119 (2008); William Mason Emnett, Queer Conflicts: Mediating
Parenting Disputes Within the Gay Community, 86 GEO. L.J. 433,437 (1997)
("By and large, courts ... have refused to extend custody or
visitation rights to gay co-parents.").
(9.) For example, in an unsuccessful constitutional challenge to
Arizona's same-sex marriage ban, the Arizona Court of Appeals
explained that "although the line drawn between couples who may
marry (opposite-sex) and those who may not (same-sex) may result in some
inequity for children raised by same-sex couples, such inequity was
insufficient to negate [Arizona's] link between opposite-sex
marriage, procreation, and child-rearing." Standhardt v. Superior
Court, 77 P.3d 451, 463 (Ariz. Ct. App. 2003).
(10.) For a discussion about childrens' interests, see Nancy
D. Polikoff, For the Sake of All Children: Opponents and Supporters of
Same-Sex Marriage Both Miss the Mark, 8 N.Y. CITY L. REV. 573, 586
(2005); Benjamin G. Ledsham, Means to Legitimate Ends: Same-Sex Marriage
Through the Lens of Illegitimacy-Based Discrimination, 28 CARDOZO L.
REV. 2373, 2375 (2007); Courtney G. Joslin, Searching for Harm: Same-Sex
Marriage and the Well-Being of Children, 46 Harv. C.R.-C.L. L. REV. 81,
85-89 (2011); Ruth Butterfield Isaacson, "Teachable Moments":
The Use of Child-Centered Arguments in the Same-Sex Marriage Debate, 98
CAL. L.REV. 121, 131-51 (2010).
(11.) Gary J. Gates & Jason Ost, The Gay and Lesbian Atlas 45
(2004). The exact number of cohabitating same-sex couples with at least
one child is unknown because there is a significant undercount; lesbian
couples and those involving a bisexual woman were twice as likely as
other same-sex couples to report that they live with a child to whom
they had not given birth. See Todd Brower, It's Not Just Shopping,
Urban Lofts, and the Lesbian Gay-by Boom: How Sexual Orientation
Demographics Can Inform Family Courts, 17 AM. U. J. GENDER SOC.
POL'Y & L. 1, 15 (2009) (citing Gary J. Gates et al., Adoption
and Foster Care by Gay and Lesbian Parents in the United States 5
(2007)).
(12.) See Brower, supra note 11, at 27. Most recent estimates place
the figure at roughly two million children being raised by LGBT parents.
See Movement Advancement Project, All Children Matter: How Legal and
Social Inequalities Hurt LGBT Families 1 (2011) [hereinafter CHILDREN
MATTER REPORT], available at
http://www.americanprogress.org/issues/2011/
10/pdf/all_children_matter,pdf.
(13.) See Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 171
(1972) ("Both the statute in Levy and the statute in the present
case involve state-created compensation schemes, designed to provide
close relatives and dependents of a deceased a means of recovery for his
often abrupt and accidental death.").
(14.) Children Matter Report, supra note 12, at 8. For a
comprehensive discussion of the benefits denied children in same-sex
families, see id. at 51-78. See generally Lee BADGETT, Money, Myths and
Change: The Economic Lives of Lesbians and Gay Men (2001).
(15.) Children Matter Report, supra note 12, at 8.
(16.) For a list of privileges that benefit mono-racial couples and
opposite-sex parents, see Angela Onwuachi-Willig & Jacob
Willig-Onwuachi, A House Divided: The Invisibility of the Multiracial
Family, 44 Harv. C.R.-C.L. L. Rev. 231, 236 (2009). There may be some
children within "no-protection states" who may receive
benefits because their parents have managed to obtain a second-parent
adoption from a lower court, however, it may be subjected to the same
fate as Boseman should a higher court strike down such adoptions as
void. See infra notes 24-34 and accompanying text.
(17.) Despite a long tradition of discrimination against nonmarital
children, it escaped constitutional review until 1968. See John C. Gray,
Jr. & David Rudovsky, The Court Acknowledges the Illegitimate: Levy
v. Louisiana and Glona v. American Guarantee & Liability Insurance
Co., 118 U. Pa. L. Rev. 1, 1-2(1969).
(18.) Lawrence v. Texas, 539 U.S. 558,579 (2003).
(19.) See Sarah Wildman, Children Speak for Same-Sex Marriage, N.Y.
TIMES (Jan. 20, 2010),
http://www.nytimes.com/2010/01/21/fashion/21kids.html. COLAGE is
probably the most well-known organization focusing exclusively on the
needs and interests of children of LGBT parents. See generally COLAGE:
PEOPLE WITH A LESBIAN, Gay, BISEXUAL, TRANSGENDER, OR QUEER PARENT,
http://www.colage.org/ (last visited Mar. 25, 2012); James G. Dwyer,
Children's Interests in a Family Context--A Cautionary Note, 39
SANTA CLARA L. Rev. 1053 (1999).
(20.) This Article is not advocating same-sex marriage as the only
possible solution to remedy potential constitutional violations. States
have a number of channels through which they can establish access to the
legal system for children of same-sex parents that would place those
children on equal footing with children of opposite-sex parents. The
vast majority of federal and state courts that have addressed the
constitutionality of laws that deny civil marriages to same-sex couples
have applied a rational basis level of Equal Protection review. See,
e.g., Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 960 n.20
(Mass. 2003) (rational basis review, but not "toothless"); In
re Marriage of J.B. and H.B., 326 S.W.3d 654, 681 (Tex. Ct. App. 2010).
A few state courts, however, have applied heightened review. See
Kerrigan v. Comm'n of Pub. Health, 957 A. 2d 407, 482 (Conn. 2008)
(holding that law classifying on basis of sexual orientation, a
quasi-suspect class, failed to meet constitutional muster under
intermediate scrutiny); Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993)
(applying strict scrutiny); Vamum v. Brien, 763 N.W.2d 863, 896-904
(Iowa 2009) (applying intermediate scrutiny to same-sex marriage ban).
For a normative discussion of how states can equalize access to the
legal system and mitigate the disparate treatment of children of
same-sex couples by focusing on solutions within the current two-parent
paradigm, see Catherine E. Smith, Equal Protection for Children of Gay
and Lesbian Parents: Challenging the Three Pillars of
Exclusion--Legitimacy, Dual-Gender Parenting, and Biology, 28 Law &
INEQ. 307, 311 (2010).
(21.) This category of states include jurisdictions where same-sex
couples are obtaining second-parent adoptions from lower courts and the
highest court has not decided the issue yet. I have decided to place
these states in this category because the legal status of those
relationships are uncertain and subject to being void should the
state's highest court (or legislature) decide to reverse those
lower court decisions. See, e.g., Boseman v. Jarrell, 704 S.E.2d 494
(N.C. 2010).
(22.) U.S. Const, amend. XIV, [section] 1. The Equal Protection
Clause is binding on the federal government via the Fifth
Amendment's Due Process Clause. See Bolling v. Sharpe, 347 U.S.
497,499 (1954); see also Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2
(1975) (explaining that the Court has always treated "Fifth
Amendment equal protection claims ... precisely the same as ... equal
protection claims under the Fourteenth Amendment").
(23.) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,439
(1985).
(24.) 704 S.E.2d 494 (N.C. 2010).
(25.) Id. at 497 (internal quotation marks omitted).
(26.) Id. at 496-97.
(27.) Id. at 497.
(28.) Id.
(29.) Id.
(30.) Id.
(31.) Id. at 497-98.
(32.) Id. at 497 (internal quotation marks omitted).
(33.) Id. at. 505.
(34.) Id.
(35.) See Nancy Polikoff, Second-parent adoption no longer
available in North Carolina, but nonbio mom can obtain custody; all
previously granted adoptions void, Beyond (Straight And Gay) Marriage
(Dec. 21, 2010), http://beyondstraightandgaymarriage.blogspot.com/2010/12/second -parent-adoption-no-longer.html. The Boseman decision also
precludes any future same-sex adoptions absent legislative action. See
Boseman, 704 S.E.2d at 505.
(36.) See Brower, supra note 11, at 19; Gates & Ost, supra note
11, at 46.
(37.) See Brower, supra note 11, at 19. Some of these jurisdictions
may have trial courts that have issued second-parent adoptions. See
Nat'L Ctr. FOR LESBIAN RIGHTS, Adoption by LGBT Parents,
http://www.nclrights.org/site/DocServer/2PA_state_list.pdf.
(38.) See Silverman, supra note 2, at 429 ("Even though both
partners collaboratively decided to have a child ... in the eyes of the
law the non-biological parent is deemed a 'legal stranger' to
the child.").
(39.) Limited or "no-protection" states include Alabama,
Alaska, Arizona, Florida, Idaho, Indiana, Kentucky, Louisiana, Michigan,
Missouri, Mississippi, Montana, Nebraska, North Carolina, North Dakota,
Ohio, Oklahoma, South Ca