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LGBTQIA Rights & Family Law: A Brief History

The development of modern family law has a close connection with the progression of LGBTQIA rights in America. An examination of the legal evolution of domestic relations and matrimonial laws can reveal a lot about the development of LGBTQIA rights, and vice versa. This blog takes a close look into the impact that the LGBTQIA rights movement has had on family law throughout history.

Love & Marriage

The notion that those with a sexual orientation or gender identity that differed from heterosexuality and conventional male-female labels constituted a legally oppressed and socially marginalized class of people is relatively new. For much of American history, society and the law almost universally considered homosexuality to be a “deviant” and “immoral” lifestyle. Many people cited religion as the basis for denying LGBTQIA members marriage rights. In essence, it was a crime to be LGBTQIA.

As the LGBTQIA community and the civil rights movement started to grow in prominence, many states took legislative measures against them. For example, in the late 1970s, California passed legislation restricting legal marriage to heterosexual couples. In addition, President Bill Clinton signed the Defense of Marriage Act (DOMA) into law, which prevented the federal government from recognizing same-sex marriage. It wasn’t until after the turn of the century that significant headway was made in relation to LGBTQIA rights.

In 2008 the California Supreme Court overturned the state’s prohibitions on same-sex marriage. However, later that year Proposition 8, a ballot measure and constitutional amendment which restricted marriage to heterosexual couples, was passed. Though Proposition 8 was ultimately ruled unconstitutional by the California Supreme Court in 2010, the decision did not take effect until 2013.

In 2013, California began to recognize and issue same-sex marriage licenses as the U.S. 9th Circuit Court of Appeals held that California’s constitutional amendment was in violation of its citizens’ federal due process rights. Finally in 2015, the U.S. Supreme Court held in Obergefell v. Hodges that laws prohibiting same-sex marriage were unconstitutional.

In a matter of decades, the institution of marriage was completely removed from its religious roots. At the same time, marriage ceased to be solely a foundation for human procreation. In essence, the contemporary social view of marriage can be seen purely as a function of love.

LGBTQIA Adoptions

Despite the LGBTQIA’s remarkable impact on marriage laws, much of the legal apparatus of family law still assumed a heterosexual configuration as the basis for family rights. Many parentage laws establish child-parent rights based on the biological connection between mother and child. Paternity rights are established based on a purported father’s marital status to a child’s biological mother, or through DNA evidence. As a result, same-sex mothers in many states cannot attain parental rights by virtue of a woman’s marriage to a child’s biological mother.

As with marriage, same-sex couples were prohibited to adopt a child by law in many states. While many states have disregarded such restrictions in the wake of Obergefell v. Hodges, the adoption process for LGBTQIA families still presents its own challenges. For example, LGBTQIA couples can start a family using assisted reproductive technology, such as in-vitro fertilization or gestational surrogacy. However, legal protections for the rights of donors and surrogates can raise legal complications. As a result, many LGBTQIA couples do not avail themselves of legal adoption procedures to establish parental rights regarding children.

The Fight Continues

Although the major legal prohibitions against LGBTQIA families have eroded, the social stigma against members of the LGBTQIA community continues to endure throughout the country. For example, several LGBTQIA couples have experienced substantial resistance when it comes to community support for their decision to raise a child. State agencies, such as Child Protective Services, have interfered or terminated the custody rights of LGBTQIA couples on the basis that their “lifestyle” poses a developmental risk to children by confusing them about sexuality and gender identity at a young age. Furthermore, many states have passed legislation allowing adoption and child placement services to deny services to LGBTQIA couples if doing otherwise conflicts with their religious values.

Bremer Whyte Brown & O’Meara Proudly Serves California Families

The decision to start a family is an important one. If you are a member of the LGBTQIA community and wanted to take the next steps toward having your own family, you can benefit from the professional legal services of a licensed attorney. At Bremer Whyte Brown & O’Meara, we are dedicated to advocating for you and your family’s rights.

To get started, call us at (949) 229-8546 or contact us online for an initial consultation about your legal options today.