By Nicole Prieto, Editor-in-Chief
LGBT rights remain a hotly contested subject in 2017. From a newly minted Circuit split and inter-executive agency dispute in employment law, to First Amendment justifications for discriminatory business decisions, there is no dearth of legal challenges that have tested the boundaries of modern LGBT rights. But while employment discrimination and wedding cakes have taken the spotlight as the Court enters its latest term, there is one area of the law that has also received some peculiar attention this past year.
Last summer, in Pavan v. Smith, the Supreme Court repudiated Arkansas’s refusal to include the name of a same-sex spouse on a child’s birth certificate. Barely a few days later, in Pidgeon v. Turner, the Texas Supreme Court declined to extend spousal benefits to state employees with same-sex partners — sending the case back to trial.
In 2013, United States v. Windsor struck down a section of the Defense of Marriage Act that prevented same-sex couples from receiving federal marital tax deductions. In 2015, Obergefell v. Hodges made gay marriage the law of the land. But even in the wake of these historic decisions, Pavan and Pidgeon reveal that delimiting the rights of same-sex spouses and their families remains steeped in uncertainty as states test the boundaries of Supreme Court precedent.
In Obergefell’s wake, what is the current legal landscape for LGBT family rights as the nine-justice Court enters a new era? And what implications await as it tackles its current docket?
Pavan is a straightforward affirmance of Obergefell’s call for same-sex spouses to enjoy the full “constellation of benefits” that accompany traditional marriage, featuring a dissent by Justice Neil Gorsuch.
Arkansas, as with several other states, has a parental presumption between two married individuals. Regardless of whether a husband is the biological father of his wife’s child born during the marriage, the state will assume his parentage and list him on the child’s birth certificate. The issue was whether this extended to married lesbian couples where only one parent has given birth.
For Indiana couple Nicole and Jennifer Singley, the answer to this question carried significant ramifications. “As a member of the Army who served a year in Iraq,” writes Rebecca Beitsch of Stateline, “she’s worried her military benefits might not be extended to her children equally.” The Court ultimately determined “that [such] differential treatment infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.”
The hurdles faced by the Singleys and the plaintiffs in Pavan were not consistently shared across the Union. In 2016, Pennsylvania’s Department of Health had already issued guidance to specifically include a second married mother’s name on children’s birth certificates when her spouse has given birth. Even where a second same-sex parent is successfully listed on a child’s birth certificate, the ACLU strongly recommends that parents should still consider adoption: “Until the law in this area is more settled, all couples (same-sex or different-sex) who conceive using donors should still do an adoption in order to guarantee full legal recognition for both parents—even if you’re married, and even if you’re both on the birth certificate.”
Rona Kaufman, associate professor of Duquesne University School of Law, teaches courses in Family Law and Employment Discrimination. For couples to ensure that they have full parenting rights, she recommends, at the least, that married partners make sure that: (1) they are both listed on their child’s birth certificate, (2) they each have a legal claim to their child, (3) they document their intended parentage, and (4) they keep in mind that laws are changing quickly.
“Ten years from now, the law’s going to be different,” she said. “Having a child with someone is probably the biggest commitment you can make for any kind of couple.”
Though Pavan may be a positive sign for families seeking legal validation, it does not do away with the anxieties for couples who have children in states where no automatic parental presumptions exist for non-birth mothers. In such instances, they may still have to go through the second-parent adoption process — one which can produce burdensome costs for couples who may have already spent several thousand dollars just to conceive.
2013’s U.S. v. Windsor was a vindication for married same-sex spouses that struck down DOMA’s provision stating that a federally recognized marriage constituted “one man and one woman.” Windsor opened the gates for federal benefits to extend to same-sex spouses, and Obergefell amplified its effects across the Union. As Walter Frank writes in his book Law and the Gay Rights Story, upon marriage, “gay couples enter a new legal universe. State inheritance laws, for example, suddenly apply to them, as does the right to file a joint state tax return.”
In 2015, just months before Obergefell’s holding, the U.S. Department of Labor extended the definition of “spouse” under the Family Medical Leave Act (FMLA) to recognize valid same-sex marriages, regardless of residence. This is certainly a dramatic change from just a few years ago when an employer could legally refuse to grant FMLA leave for an employee who needed to care for their same-sex spouse.
The change to the DOL’s rule came into effect on March 27, 2015. In this respect, needing to take leave to care for children has not been contingent on the recognition of same-sex marriage. This perhaps operates as some relief for same-sex couples, who, regardless if they would otherwise lack parental standing, can at least demonstrate care for a child in loco parentis.
Notably, there are still no federal protections for employment discrimination on the grounds of sexual orientation. Across most federal jurisdictions, there remains uncertainty about whether same-sex partners could be fired from their jobs on the basis of their sexual orientations. This is the “married on Sunday, fired on Monday” principle that has paradoxically haunted employment law since Obergefell. Hively v. Ivy Tech is a landmark 2017 case, which determined that Title VII forbids discrimination based on sexual orientation; this Seventh Circuit decision created a circuit split, which the Court declined to address when it did not take up the Eleventh Circuit case Evans v. Georgia Regional Hospital.
Other areas where married same-sex couples enjoy the receipt of benefits include social security and veterans benefits. Since Obergefell, the Social Security Administration “now recognize[s] same-sex couples’ marriages in all states, and some non-marital legal relationships . . . for purposes of determining entitlement to Social Security benefits, Medicare entitlement, and eligibility and payment amount for Supplemental Security Income (SSI) payments.”
LGBT veterans have enjoyed the receipt of benefits both in light of Obergefell and the repeal of “Don’t Ask, Don’t Tell.” The U.S. Department of Veterans Affairs’ web page on LGB benefits encourage veterans “in same-sex marriages who believe they are entitled to benefits … [to] promptly apply for benefits. Furthermore, Veterans whose claims were previously denied based on prior guidance should re-apply for benefits.” The page also lists several programs where veterans may designate beneficiaries regardless of sexual orientation, such as Veterans’ Group Life Insurance (VGLI) or the Montgomery GI Bill.
The Texas Supreme Court’s decision in Pidgeon — to not extend state employee benefits to same-sex spouses — came only a few days after the Supreme Court decided Pavan. It agreed with the petitioners, who originally fought against “furnishing benefits to persons who are married in other jurisdictions to City employees of the same sex,” that Obergefell did not demand the extension of state spousal benefits to married same-sex couples.
In light of Pavan, its result is thus perhaps unusual — and critics and commentators have indicated as much. Turner and the City of Houston filed a petition for writ of certiorari, which the Court also denied in December.
Divorce and Custody
Unsurprisingly, the issue of parental presumption has implicated child custody and visitation disputes between separated same-sex spouses. Where mothers have traditionally been favored for custody over fathers, in same-sex relationships between women, a birth mother may enjoy preference over a non-birth mother — depending on the state.
In 2016, the Supreme Court of New York, Appellate Division, found presumed parentage for a biologically unrelated same-sex parent in Matter of Kelly S. v. Farah M. Matter of Kelly S. concerned two women who entered a relationship in California and conceived three children from artificial insemination by a mutual friend. After the couple moved to New York and later separated, the children remained with only one of the women, Farah M.
While one child was born from Kelly S. and legally adopted by Farah, two of the three children were born from Farah. The latter had conceived through at-home artificial insemination that did not involve a written consent agreement. One child was born during the domestic partnership of the parties (registered in 2004), and the other was born during the parties’ later marriage (occurring in 2008). Kelly was named on the birth certificates of both children. After their separation, Kelly sought visitation, but Farah argued that she lacked standing.
The issue, ultimately, was “whether, as a matter of comity, the Family Court properly recognized Kelly S. as a parent of the children under New York law, thereby conferring standing for her to seek visitation with the children, notwithstanding the parties’ failure to comply with California’s artificial insemination law.” The Family Court determined that though the parties’ failure to comply with either California or New York’s artificial insemination laws did not give Kelly parental status, Kelly was still a presumed parent under California law.
The Supreme Court of New York agreed — giving weight to how they were born during either of the legally recognized relationships of the parties and how Kelly was named on their birth certificates. It determined that the Family Court was correct to determine that Kelly was a parent under New York law “as a matter of comity.” Regardless of Obergefell, New York had long “afford[ed] comity to [valid] out-of-state marriages,” and the state had never considered same-sex marriages “‘contrary to the prohibitions of natural law or the express prohibitions of a statute.’”
Similarly, in McLaughlin v. Jones, the Supreme Court of Arizona determined that Obergefell’s “constellation of benefits” and paternity presumption extended to same-sex spouses. The biological mother could not repudiate the parentage of her former partner of the child born to their marriage. The court determined the birth mother to be “equitably estopped from rebutting her spouse Suzan’s presumptive parentage of their son.”
Arizona’s highest court explicitly granted review of the McLaughlin case to resolve a split between two different Arizona appeals courts regarding the grant of paternal presumption to married, non-biological lesbian mothers. It cited to Turner v. Steiner, in which “[a] divided panel concluded that a female same-sex spouse could not be presumed a legal parent under § 25-814(A)(1) because the presumption is based on biological differences between men and women and Obergefell does not require courts to interpret paternity statutes in a gender-neutral manner.”
As in Turner — and pre-Pavan — a Texas court of appeals did not find that a non-biologically related mother had any parental standing to a child conceived during her marriage but born after separation from the biological mother. The appellant, C.W., had married the appellee, M.N., in another state in 2011. Their child, A.E., was born to M.N. through artificial insemination by an anonymous donor. There was not a “gestational agreement or IVF agreement bearing C.W.’s signature.” The trial court further determined that C.W.’s contact with the child after birth was “sporadic,” she never had overnights with the child, she did not provide financial support to the child, and the couple had not held out A.E. as both of their own.
The Court of Appeals determined that the trial court was correct in reasoning that Obergefell did not give C.W. standing to assert parentage — nor that it required the court “to rewrite the Texas statutes that define who has standing to bring a [Suit Affecting Parent-Child Relationship].” At least according to the court, the Supreme Court had not mandated Texas statutes “relat[ing] to the marital relationship or the parent-child relationship [to] be ‘gender neutral.’” Among other items, in rejecting C.W.’s reliance on Section (b) of Texas’s ART statute, the court determined that C.W. failed to meet its statutory requirements. The court cited to the statute section:
(b) Failure by the husband to sign a consent required by Subsection (a) [concerning assisted reproduction] before or after the birth of the child does not preclude a finding that the husband is the father of a child born to his wife if the wife and husband openly treated the child as their own.
(Internal quotation marks omitted.) (Emphasis added.) Though the court determined that this provision could not have applied to the couple because neither signed a consent form, it further deconstructed C.W.’s insistence that the statute needed to be read in a gender-neutral manner in light of Obergefell. To change “husband” and “wife” to spouse in section (b), according to the court, “would affect a substantive change … [that] would amount to legislating from the bench.”
In 2017, the Supreme Court admonished disparate treatment of same-sex spouses who were denied a parental presumption offered to straight couples. In its October term, it began deliberating the role of First Amendment exemptions to private businesses that discriminate against same-sex spouses, and it declined to consider a circuit split on the legality of adverse employment decisions made on the basis of sexual orientation.
Starting families is an incredibly deliberate process for same-sex spouses. Prof. Kaufman noted that, for the most part, same-sex couples do not have to consider too many different things than other couples do, though they may have to be more aware of the protections available to them in any given jurisdiction. “They are aware of what the risks are and what the worst-case scenarios would look like,” she said.
In the complexities that invariably attach to family formation and dissolution, pro-LGBT changes in the law may not necessarily keep pace with the unique challenges and circumstances implicating same-sex partners and their children.
“I think it still matters what state you live in,” Prof. Kaufman said. “[In] any state that’s going to deny Obergefell or Windsor, [change] is just a matter of time. But it won’t happen quickly.”
Nicole Prieto is a 2018 J.D. candidate and editor-in-chief of Juris Magazine. She is the president of the Duquesne Intellectual Property Law Association, an executive articles editor for the Duquesne Law Review, and an arts and entertainment writer for The Duquesne Duke.
 See generally Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017); Larry Neumeister, US faces off with itself in gay skydiver discrimination case, Associated Press, WPXI.com (Sep. 30, 2017, 9:53 AM), http://www.wpxi.com/news/national-news/ap-top-news/us-faces-off-with-itself-in-gay-skydiver-discrimination-case/617203457.
 David G. Savage, A baker refused to make a cake for a gay couple due to religious beliefs. Supreme court will rule on the case in fall, LA Times (June 2, 2017, 12:55 PM), http://www.latimes.com/politics/la-na-pol-court-gays-religion-20170626-story.html.
 Pavan v. Smith, 137 S. Ct. 2075 (2017).
 Pidgeon v. Turner, No. 15-0688, 2017 Tex. LEXIS 654 (Texas 2017).
 United States v. Windsor, 133 S. Ct. 2675 (2013).
 Obergefell v. Hodges, 135 S. Ct. 2071 (2015).
 See generally Pavan, 137 S. Ct. 2075.
 Rebecca Beitsch, Gay Couples Fight to Be Included on Birth Certificates, Stateline (June 12, 2017), http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/06/12/gay-couples-fight-to-be-included-on-birth-certificates.
 Pavan, 137 S. Ct. at 2077.
 Same-Sex Parenting – Birth Certificates FAQs, ACLU, https://www.aclupa.org/files/4314/6480/4976/Same-Sex_Parenting__Birth_Certificate_FAQs.pdf (last visited Nov. 10, 2017).
 Interview 2 with Rona Kaufman, Associate Professor, Duquesne University School of Law, in Pittsburgh, Pa. (Oct. 31, 2017).
 Rebecca Beitsch, Gay Couples Fight to Be Included on Birth Certificates, Stateline (June 12, 2017), http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/06/12/gay-couples-fight-to-be-included-on-birth-certificates. (“‘We’ve spent over $33,000 already just to have this child, and the state says we should spend another $7,000 to adopt our own child after we’ve made all this effort?’”).
 Windsor, 133 S. Ct. at 2683.
 Walter Frank, Law and the Gay Rights Story, at 175 (2014).
 Fact Sheet: Final Rule to Amend the Definition of Spouse in the Family and Medical Leave Act Regulations, Dept. of Labor (Feb. 2015), https://www.dol.gov/whd/fmla/spouse/factsheet.htm.
 Janet Walsh, Gay in America: Left Out of Family Leave, Huffington Post (May 10, 2012, 6:35 PM ET), https://www.huffingtonpost.com/janet-walsh/gay-in-america-left-out-of-family-leave_b_1507114.html (last updated Feb. 2, 2016).
 Fact Sheet, supra note 15.
 Guide: The Family and Medical Leave Act: What Should LGBTQ Families Know?, A Better Balance: The Work and Family Legal Center (July 2017), https://www.abetterbalance.org/resources/fmla-lgbt-guide/ (last updated Aug. 1, 2017).
 See generally Lisa Bornstein & Megan Bench, Married on Sunday, Fired on Monday: Approaches to Federal LGBT Civil Rights Protections, 22 Wm. & Mary J. Women & L. 31 (2015).
 See generally Hively, 853 F.3d 339.
 Evans v. Georgia Regional Hospital, SCOTUSblog, http://www.scotusblog.com/case-files/cases/evans-v-georgia-regional-hospital/ (last visited Dec. 18, 2017).
 What Same-Sex Couples Need to Know, Social Security Administration (Jan. 2017), https://www.ssa.gov/pubs/EN-05-10014.pdf.
 Lesbian, Gay and Bi-Sexual (LGB) Servicemembers and Veterans, U.S. Dept. of Veterans Affairs, https://www.benefits.va.gov/persona/lgb.asp (last visited Nov. 10, 2017).
 See generally Pidgeon, 2017 Tex. LEXIS 654.
 Pidgeon, 2017 Tex. LEXIS 654, at *2-3.
 See, e.g., Dale Carpenter, How wrong was the Texas Supreme Court about equality for married gay couples?, Washington Post (July 2, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/02/how-wrong-was-the-texas-supreme-court-about-equality-for-married-gay-couples/. (“The core error here is the Texas Supreme Court’s crabbed understanding of Obergefell.”).
 Turner v. Pidgeon, SCOTUSblog, http://www.scotusblog.com/case-files/cases/turner-v-pidgeon/ (last visited Dec. 18, 2017).
 139 A.D.3d 90 (N.Y.S.2d 2016).
 Matter of Kelly S., 139 A.D.3d at 93-94.
 Id. at 92.
 Id. at 95-96.
 Id. at 100-01.
 Id. at 101.
 Id. at 97.
 McLaughlin v. Jones, 401 P.3d 492 (Ariz. 2017).
 Id. at 494.
 398 P.3d 110 (Ariz. Ct. App. 2017).
 McLaughlin, 401 P.3d at 495 (internal citations and quotation marks omitted).
 In re A.E., No. 09-16-00019-CV, 2017 Tex. App. LEXIS 3817, at *1 (Tex. App. 2017).
 Id. at *2.
 Id. at *4.
 Id. at *20.
 Id. at *21.
 Id. at *23-25.
 Interview 2, supra note 11.
 Interview 1 with Rona Kaufman, Associate Professor, Duquesne University School of Law, in Pittsburgh, Pa. (Oct. 17, 2017).