Why Leaving Same-Sex Marriage to the States Won’t Work

A lot of people have taken the position that letting individual states decide whether to permit same-sex marriage is the proper course of action.  It sounds good, right?  After all, each state’s politicians will know what will work best for that particular state.  Even New Hampshire Senator Kelly Ayotte shares this view.  As U.S. senators change minds on gay marriage, Ayotte still against it | Political Scoop – WMUR Home.

But there’s one huge problem with that viewpoint–the kids.

It all comes down to the kids born to same-sex partners.  These children, just like all other children, need and are entitled to certainty about their legal parentage from infancy.

Consider the case of Baby Veronica.  Court rules for adoptive parents in Baby Veronica case.  She’s three years old and the fight regarding her parentage is still not over.  That’s an awful position for any child to be put in, whether the situation comes about as a result of an adoptive placement or from inconsistent state laws regarding same-sex marriage.

With the exception of couples using the expensive process of Reciprocal IVF or experimental mitochondrial DNA techniques, it is not possible for two same-sex parents to both be biologically related to their child.  Thus, same-sex parents rely on alternative means to establish their legal rights.  In New Hampshire, these alternative methods can include the marital presumption (your wife’s child is presumed to be your child) and stepparent adoptions.  The problem is that not all methods used to establish the legal relationship of the non-biological parent are equally firm.  When the legal relationship is established solely based upon a same-sex marriage, such as parentage based on the marital presumption, the grounds of legal parenthood are especially shaky.  While New Hampshire may recognize these legal grounds for parentage as part of its overall statutory scheme of recognizing same-sex marriages, there is no guarantee of such recognition in all other states.  And that’s not good for kids.

If the best interests of a child are truly what matters, then such a standard requires that parentage be firmly established and not subject to change when the family moves or travels to another state.

That’s why leaving the issue of same-sex marriage to the individual states won’t work.

New Hampshire lawyer Catherine Tucker