Crosspollination of Same-Sex Parental Rights Post-DOMA: The Subtle Solution Note

In the summer of 2013, the United States Supreme Court, to great fanfare, struck down the central provision of the seventeen-year-old Defense of Marriage Act (“DOMA”). Yet a second DOMA provision, denying full faith and credit for same-sex marriages, was not overturned, meaning individual states remain free to ban and refuse recognition for same-sex unions. As a result, the parental rights of same-sex spouses who move into anti-marriage-equality states may be imperiled. This Note argues, however, that even when same-sex marriages are not supported within a jurisdiction, parental rights emanating from those marriages will be supported. Surveying case law from states across the country to show that statutory and common-law mechanisms work to preserve the parental rights and responsibilities of members of same-sex unions, this Note goes on to suggest that broad societal recognition of children’s need for parents outweighs state-by-state positions on gay marriage. Hence, same-sex civil rights are subtly being advanced nationwide by the day-to-day decisions of state family courts. A migration of same-sex family law rights from marriage-equality states into mini-DOMA states appears to be under way, a process that gay-rights advocates can encourage as a subtle solution to the anti-LGBT policy still prevailing in a majority of U.S. jurisdictions