LGBTQ Rights After Marriage?

Art by Anisa Holmes

The New York Marriage Equality Act of 2011 promised that same-sex marriages and opposite-sex marriages would be treated the same in all respects of the law, allowing people like Jann Paczkowski to finally marry their partners. Most narratives surrounding the liberalization of marriage laws conclude with marriage as the happy ending. Packzowski’s story, however, does not end so sweetly. When she and her partner separated earlier this year, a family court judge denied her any custody rights over the two-year-old boy she and her wife had raised together. For all intents and purposes, Paczkowski was a mother to the child; she was present at his birth and involved in his entire life until the separation. The couple had even worked out a shared custody arrangement during their initial separation. Yet even in a state with a progressive reputation and legalized gay marriage, Paczkowski was refused parental status in the eyes of the law. Her experience is all too common. Despite the recent progress in extending marriage rights to same-sex couples, federal and state law have a long way to go to catch up with the changing face of American families.

In recent years, there is no doubt that the LGBTQ rights movement has made considerable strides. Since 2004, marriage equality has spread to include 32 states, and public opinion on LGBTQ marriage rights has shifted dramatically, with a majority of the country approving of same-sex marriage. Despite this progress, the landscape for gay parenting rights is much more complicated. Only 23 states and Washington, DC explicitly permit same-sex couples to adopt, while eight states have restrictions in place to prevent the practice. In the remaining states, same-sex couples face a murky legal arena in which the law is unclear and varies on a case-by-case basis. New York is among the states that permit both joint adoption and so-called “stepparent adoption,” a process that applies for both heterosexual and homosexual couples and allows spouses to adopt the biological children of their partners. This process is essential because the law otherwise presumes that children born before marriage only belong to the biological parent.

If Paczkowski had petitioned for a stepparent adoption, then the custody battle may have turned out differently. In 1991, however, New York’s highest court ruled that “biological strangers” do not have parental rights, a decision that later kept Paczkowski from obtaining custody rights to her child to her child. While the case was viewed as a setback for the LGBTQ rights movement, a dissenting justice warned that the case had wider implications; the ruling had the potential to “affect a wide range spectrum of relationships,” not just same-sex ones. The difficulties faced in family law are not exclusive to same-sex partnerships, especially given the increasing rates of unmarried mothers in the country. Nevertheless, discrimination towards same-sex couples is readily apparent in many judicial spaces. Several New York courts have treated husbands in opposite-sex relationships as de facto parents even when they weren’t biologically related to the child, but courts have been reluctant to rule similarly in disputes between same-sex partners. Although the law ostensibly applies to everyone the same way, the change in marriage laws in New York and many other states has forced a greater number of same-sex families into legal limbo — especially since many same-sex couples were raising children long before marriage was a possibility. A dearth of publicity around these disputes exacerbates the problem, with people often unaware of the potential consequences of separation and custody battles until it’s far too late.

But the discrimination does not stop with parenting rights. While the fanfare surrounding the gay rights movement has centered on marriage equality, the flipside of that issue is divorce equality, where inequities persist and are partly responsible for the tangled legal situations of people like Paczkowski. Compared to many couples, however, Paczkowski and her partner were lucky: They lived in a state that recognized their marriage. Couples that marry in one state and then move before deciding to divorce can find themselves in even more impossible situations. Alaska, Washington and South Dakota are the only states without a residency requirement for divorce. As a result, in many states, same-sex couples that married elsewhere cannot divorce, since their marriages legally don’t exist. This makes custody battles particularly complicated—and renders courts less likely to grant parental rights. And even if a couple’s marriage is unrecognized in their home state, it is still valid in the eyes of the federal government, a policy that began after the Supreme Court struck down the Defense of Marriage Act in 2013. Hence, couples that want to divorce, but can’t, must remain legally married even if they separate. So while 60 percent of Americans now live in states with marriage equality, the other 40 percent face significant challenges.

Even where same-sex divorce is legal, the situation can get complicated. Because the law only recognizes the time couples were actually married, the legal system cannot take account of any life events before the marriage. The problem isn’t only limited to divorce; it also arises when one of the spouses dies. The only way to avoid potential legal chaos is a prenuptial agreement, but few couples of any kind have one. A further complicating factor is that many long-term couples filed cohabitation agreements — legal contracts that regulate property rights and make arrangements for shared assets — while waiting for marriage to be legalized. Yet if the couples later get divorced, it’s unclear whether those agreements remain valid. Behind all this confusion is a simple truth: Since same-sex divorce is a new phenomenon, there hasn’t been sufficient time for legal precedent surrounding these disputes to be established. Active work must be done by legislatures at every level of government to help clarify the legal quagmire that many same-sex couples now face.

Another confounding aspect of the new legal landscape is the lack of anti-discrimination laws. There are now 10 states with marriage equality but no employment discrimination protections. Overall, 18 states prohibit job discrimination based on sexual orientation and gender identity and three prohibit it based on only sexual orientation. Efforts to pass the Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination nationwide, have faltered in the House of Representatives after the legislation cleared the Senate with 64 votes. Due to concerns about proposed religious exemptions in these laws, which some contend would give religiously-affiliated organizations a blank check to discriminate, most LGBTQ activists have withdrawn their support in favor of an update to general national anti-discrimination statutes., As such, the battle at the federal level is likely to prove all but impossible, and in the meantime, protections are still badly needed. But the most troubling aspect may be the lack of public awareness. Although 73 percent of Americans support ENDA, a view that cuts across partisan lines, 69 percent believe that it is already illegal to fire someone on account of their sexual orientation. The success in the battle for marriage equality has likely undermined efforts in other areas of LGBTQ rights, simply because the public assumes these commonsense protections exist. In reality, they don’t. There is no doubt that the LGBTQ rights movement has made considerable strides. Marriage equality has spread to include 32 states — an incredible feat considering that until the 2003 Supreme Court decision in Lawrence v. Texas, same-sex sexual activity was illegal in 13 states. Furthermore, the conservative opposition has all but waved the white flag, and LGBTQ issues received, for the most part, little attention in the 2014 election cycle.

The great strides in marriage equality have also obscured persistent inequities in other areas. Twenty states have no laws addressing hate crimes based on sexual orientation or gender identity, although there is a federal law that provides such protection. Just 21 states ban discrimination in public accommodations based on sexual orientation, and only 17 have similar bans based on gender identity. Only 18 states protect LGBTQ students from bullying, and just 12 have explicit protections against discrimination for LGBTQ students. Similarly, only a handful of states protect from discrimination in housing. The takeaway from all these statistics is that despite a public perception that the LGBTQ rights movement has won equality, the movement as a whole has a long way to go to reach parity with heterosexual rights. By defining the LGBTQ rights movement almost entirely in terms of marriage, organizations like the Human Rights Campaign and Freedom to Marry may have distracted the public from other pressing LGBTQ rights issues. The nice façade of marriage equality has belied the considerable progress that remains to be made.

The end goal of the LGBTQ rights movement was never just marriage equality. Amidst the fanfare, it’s easy for the average American to believe the battle is over or at least nearing its end. But the legal scene, whether it relates to family law, divorce, or discrimination protections, is still stacked against LGBTQ Americans. And as Paczkowski’s custody battle demonstrates, even states with a progressive reputation still suffer from these problems. The The campaign for full equality is likely to be long: The civil rights movement didn’t end with the Civil Rights Act of 1964, just as women’s rights advocates weren’t content to stop at the 19th Amendment. While most people think of marriage equality as the end of the LGBTQ rights movement, it is really just the beginning.

About the Author

Pieter Brower '18 is a Public Policy and Hispanic Studies concentrator. He currently serves as a Managing Editor and BPR, and was formerly the Associate Content Director.

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