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July 01, 2009

Interstate Recognition of LGBT Families

Shannon Price Minter

Family law for lesbian, gay, bisexual, and transgender (LGBT) people is a confusing patchwork of conflicting state laws. Six states permit same-sex couples to marry. Eight states and the District of Columbia permit same-sex couples to register as partners in civil unions or domestic partnerships. In most states, however, same-sex couples are denied any official recognition. With regard to children, many states either automatically recognize both partners in a same-sex couple as legal parents of a child born to one of them or permit the couple to obtain a second-parent adoption. But in a number of states, there is no way for both partners to become legal parents to their children. Because state laws differ so significantly, a couple that is legally married in one state may be treated as legal strangers in another, with devastating legal consequences. Likewise, a same-sex parent who is presumed to be a legal parent in one state may be deemed to have no parental rights even in a neighboring state.

The Full Faith and Credit Clause of the U.S. Constitution provides some protection against these risks, but not in every situation. Under well-settled law, every state must honor valid court judgments from other states, even when those judgments conflict with a state’s own public policies. Therefore, even if a state’s own laws are extremely hostile to LGBT parents, that state must give full faith and credit to a judgment of adoption or parentage that was validly granted to a same-sex parent by the court of another state. For example, the Florida District Court of Appeal recently held that Florida must recognize an adoption granted to a lesbian mother in Washington even though the adoption would have been unlawful in Florida. Similarly, in 2008 the Tenth Circuit struck down an Oklahoma law that purported to withhold recognition of same-sex parent adoptions from other states.

But while the law is clear that judgments of adoption or parentage must be honored in every state, it is less clear that the Full Faith and Credit Clause protects a same-sex parent who did not obtain a court judgment. For instance, the laws of several states now include a presumption that a child born to a same-sex couple through assisted reproduction is the legal child of both partners, without the need for an adoption. But if the family were to move or even travel to another state that does not provide similar recognition, that state might not recognize the parent-child relationship. That is because, while states must recognize the judgments of sister states, they are not necessarily required to give effect to the laws of other states. For both policy and constitutional reasons, states should honor existing parent-child relationships, but until those are fully tested, families are at risk if they do not take the extra step of obtaining an adoption or parentage judgment to ensure that their parental relationships will be respected anywhere in the United States.

Similarly, it is also unclear whether officially recognized relationships between same-sex couples—such as marriages, civil unions, or domestic partnerships—will be honored by other states. The federal Defense of Marriage Act purports to establish that states are not required to give full faith and credit to the marriages of same-sex couples from other states, and historically, courts have held that the requirement of full faith and credit does not ordinarily mandate recognition of marriages that are contrary to the policy of the forum state. In practice, however, some jurisdictions that do not affirmatively allow same-sex couples to marry, including New York and Washington, D.C., recognize marriages of same-sex couples that were entered elsewhere. That policy follows the sensible and long-established rule of comity, which provides that marriages valid where entered ordinarily should be valid everywhere.

While the status or rights that a couple’s home state provides may not always be portable if the family travels or moves to another state, there are steps that same-sex couples can take to ensure that their families receive maximum protection wherever they travel or live. Before traveling or moving, same-sex parents should seek legal advice to ascertain the best means to protect their families. Couples with children should obtain a parentage judgment or adoption to make sure that the child’s legal relationship to both parents is protected. Each partner should execute a will and other documents, such as a health care proxy. These extra steps are burdensome and obtaining them may impose serious financial and practical hardships on some couples, but until full equality is achieved, they are necessary to ensure that LGBT families have at least some measure of protection.

Shannon Price Minter

Shannon Price Minter is the legal director of the National Center for Lesbian Rights in San Francisco, California.