Marriage Equality’s Wasteland: The Struggle for Queer Families After Obergefell

• In Event: Queer Interrogations: State Sovereignty, Precarity, and Reproductive Rights

Abstract

Obergefell v. Hodges, the Supreme Court case that legalized same-sex marriage in the United States in 2015, has been praised by many LGBTQ organizations and liberal allies as one of the most important civil rights cases in the past century. However, the case presents a series of problems for everyday queer families and kinship networks. These include the case’s failure to recognize queer reproductive rights and the persistence of legal and financial obligations required for state family recognition. For instance, infertility insurance, when it does exist, often privileges heteronormative families and places additional financial burdens on prospective same-sex and single parent households who wish to have children. Furthermore, non-biological parents are often forced to undergo a byzantine 2nd parent adoption process that costs an average of $5,000 and, in many states, requires a home visit from a social worker. In some states, this process requires a visit from a social worker affiliated with a state department of probation if the prospective parent(s) cannot afford a private social worker – linking the criminal justice system into civil cases for queer family recognition.

Despite the persistence of the struggle for queer families in the wasteland of marriage equality, there is a dearth of academic research on the subject. Virtually every major LGBTQ family law volume was written before Obergefell v. Hodges and does not contemplate the ways in which a court case that builds a fundamental right out of the reproductive and privacy rights of the past may present new barriers for queer families. This paper seeks to fill in the research gap by examining the dynamics around legislative battles for queer family rights in the aftermath of marriage equality. Does marriage equality carve out a place for queer reproductive rights or does it present new complications for and limits on queer family identity? What new coalitions stand in the way of or create possibilities for non-normative queer kinship networks?

In answering these questions, I draw from an original dataset composed of in-depth interviews and participant observations with community leaders and advocates involved in the failure to pass an omnibus LGBTQ family law bill in New York State in 2019 and the new campaign to pass the bill in 2020. The 2019 bill failed in 2019 as prominent liberal feminists formed an alliance with social conservatives in response to the bill’s attempt to lift the ban on surrogacy in New York. Through an interpretivist examination of the interviews and participant observations collected, I seek to understand both the dynamics of this alliance and the extent to which formal legal equality can achieve justice for queer families. In doing so, I build off the work of Gash and Raiskin (2018) who find that who find that lesbian and gay parentage remains a site of ongoing legal and social contestation after Obergefell v. Hodges and Gash and Yasmin (2016) who argue that “family” is a state-appointed and anointed status.

Author

• Erin Mayo-Adam, Hunter College, CUNY