Dobbs, the Respect for Marriage Act, and State of Family Equality

By Deborah H. Wald © January 8, 2023

Over the past year, we have seen major changes in family law at a federal level, brought about primarily by the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health, followed by passage of the federal Respect for Marriage Act (RMA).  This combination has left many wondering where we stand, as a nation, when it comes to family equality.  Below is my best assessment of what these combined events mean for families – especially families conceiving children through assisted reproduction, including LGBTQ families.

(1) MARRIAGE EQUALITY IS NOT THE SAME AS PARENTAGE EQUALITY.

Many people, including many attorneys, conflate marriage equality and parentage equality; in other words, they think that if you are married – and your marriage is recognized – that automatically protects your rights as a parent.  While being married generally allows both spouses’ names to appear on a birth certificate, it does not assure that the legal rights of a non-genetic parent will be protected.  (Birth certificates provide evidence of parentage, but not proof of parentage, largely because the hospitals taking down the information for birth certificates have neither the right nor the ability to check whether two people claiming parentage actually are legally entitled to that claim.)  Regardless of marital status, true legal protection of a non-biological parents’ relationship with their child requires a court judgement confirming parentage.  This was true before Obergefell, it was true between Obergefell and Dobbs, and it remains true after the enactment of the RMA.

(2) THE DOBBS DECISION HAS DESTABILIZED FAMILY LAW FAR BEYOND ABORTION.

Family law is not a subject covered by the United States Constitution, nor by the Bill of Rights  The constitutional rights associated with family law – the right to privacy in our intimate relationships, the right of access to contraception, the right to autonomy in parental decision-making, etc. – emanate from a long-held belief that there are rights protected by our Constitution despite not being explicitly stated within the body of that document.  The Dobbs decision – and particularly Justice Clarence Thomas’s concurring opinion – casts doubt on that premise.  According to Thomas, the Due Process Clause – upon which our legal system has relied for decades in determining a right to privacy and self-determination that encompasses much of our family lives – provides no protection in the area of family law.  Along with declaring that women do not have a constitutional right to determine when to terminate a pregnancy, Thomas invites reconsideration of cases ranging from Griswold (right of married people to obtain contraceptives) to Lawrence (right of adults to engage in private, consensual sexual activity), to Obergefell (right to marriage).  These cases cover almost 60 years of family law jurisprudence (Griswold is a 1965 decision) and leave no Constitutionally-based family law principal safe from reconsideration.

(3) DOBBS IS OF PARTICULAR CONCERN FOR TRANSGENDER PEOPLE.

While the Dobbs decision only explicitly relates to reproductive healthcare, it potentially has far broader implications for access to health care more generally.  If the government can constitutionally limit access to needed reproductive medical care, there is good reason to worry that the government may interfere with access to other medical care beyond pregnancy care.  The obvious example, which we are already seeing in several states, involves limiting the rights of parents to obtain affirming treatments for their transgender children.  The prospect of further state interference with the relationship between doctors and their patients is deeply concerning for transgender people, as well as for the parents of transgender youth and the professionals providing them care.

(4) THE RMA ONLY PARTIALLY SOLVES THE DOBBS PROBLEM FOR SAME-SEX COUPLES.

The RMA was a historic act, of deep symbolic significance, showing how far we’ve come as a nation regarding LGBTQ rights.  Unfortunately, the actual legal impact of the bill is less clear.  The RMA requires every state to recognize marriages from every other state, and also provides federal recognition for all marriages.  While there is no question Congress can require the federal government to recognize all marriages, it is not entirely clear Congress can mandate this of the states without violating states’ rights.  Further, we already have seen states saying, in essence, “okay, we recognize your marriage, but that doesn’t mean we have to grant you any rights or benefits based on that marriage.”  Louisiana tried this with regard to issuing accurate birth certificates, and Texas tried this with regard to allowing access to spousal health benefits.  We can expect that even with the RMA in place, conservative states will try to find ways around according full marriage equality to same-sex couples.  What his means, in practical terms, is that same-sex couples need to continue to be self-protective, including in engaging in appropriate estate planning and obtaining court judgements to protect their important relationships to the full extent possible.

(5) DOBBS CREATES CONCERNS ABOUT REPRODUCTIVE AUTONOMY THAT IMPACT ALL OF ASSISTED REPRODUCTION LAW.

Although the Dobbs decision only explicitly addressed abortion rights, by implication it could impact much of reproductive law.  The most obvious example has to do with the disposition of embryos: if a state can determine what an embryo deserves constitutional protection, the right to control disposition of that embryo may be legally compromised.  We’ve already seen this in Arizona, where the state enacted a law providing that if a divorcing couple has embryos in storage, and they cannot agree on the disposition of those embryos, the court “shall award the … embryos to the spouse who intends to allow the … embryos to develop to birth”, regardless of any prior written agreements to the contrary.  We can expect to see more laws like this after Dobbs.

See the DOBBS and RMA FAQ for further information about the impact to Californians