Maryland Bar Bulletin
Publications : Bar Bulletin : November 2013

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The past year has seen significant advancement and reasons for celebration in the fight for legal equality in the gay and lesbian communities. 

On November 6, 2012, Maryland voters passed referendums legalizing same-sex marriage, which took effect on January 1, 2013, making Maryland one of 14 states and the District of Columbia to allow same-sex couples to legally marry. That local victory was soon followed by an even more significant national achievement. On June 26 of this year,  in US v. Windsor, the Supreme Court struck down the discriminatory Defense of Marriage Act (DOMA), which denied government benefits to same-sex spouses and prohibited the federal government from recognizing same-sex marriages in states that legally recognized their union. 

As a result of the DOMA decision, same-sex couples are now entitled  to  receive  equal treatment under the laws of the federal government and  access to more than 1,000 federal protections, previously granted only to heterosexual spouses. Even with the Supreme Court’s recent ruling, the quest for equality under the eyes of the law remains a work in progress, since there are still certain liberties not automatically granted to same-sex married couples, particularly those planning to have children and raise a family. 

Maryland law provides that “a child born or conceived during a marriage is presumed to be the legitimate child of both spouses.” (MD Code, Estates and Trusts, §1-206.) In 2011, the state began permitting women to be named as a parent on the birth certificate of a child born to her same-sex spouse, without the necessity of a court order, even prior to same-sex couples being allowed to marry in the state. (The same is not true of two married fathers who must still seek a court order to have both of their names listed on a child’s birth certificate.)

Yet despite this significant step and the recent legalization of same-sex marriage, which provides a certain level of legal protection for same-sex parents, it is still important and highly recommended for non-biological parents to adopt the child of their same-sex partner in a second-parent adoption. About half of the states, including Maryland, and the District of Columbia, permit second-parent adoptions for same-sex couples.   

In Windsor, the Court stated the “recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.” Thus, it continued, “the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce… [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.”

While the Supreme Court’s ruling struck down a key DOMA provision, it did not invalidate the entire Act. A critical piece that was unchallenged and is still valid law is Section Two, which “allows states to refuse to recognize same-sex marriages performed under the laws of other States.”  

Article IV, §1 of the Constitution, otherwise known as the Full Faith and Credit Clause provides that “full, faith, and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”  However, the same deference and recognition is not necessarily extended to the laws, benefits, or protections of states that run afoul to that state’s public policies. In 2003, the Supreme Court, in Franchise Tax Board v. Hyatt, reiterated that “[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.”  (538 U.S. 488, 494 (2003), quoting Baker v. General Motors, 522 U. S. 222, 232 (1998).)

In considering one’s parental status based solely on marriage – an area of law reserved exclusively for the states – it is likely that a state and/or federal government will not recognize the non-biological spouse as the child’s parent. 

Conversely, a court-ordered adoption decree, based on the child’s best interest and the suitability of the non-biological spouse to be a parent, is one of the best measures to ensure that other states and/or the federal government recognize the non-biological spouse as the legal parent of an adopted child. 

While the legal status of a parent is automatically conveyed to the biological parent of that child, a second-parent adoption protects the non-biological parent’s relationship with the child and ensures that his or her rights are legally protected. In a second-parent adoption, the non-biological parent, with the consent of the birth mother, legally adopts the child without the biological or “first parent” losing any parental rights.   Even though a birth and marriage certificate offers certain emotional and legal protections in Maryland, they do not offer the same level of protection and reciprocity that a court-ordered adoption does.  In a majority of states whose laws do not recognize same-sex marriages, there is a real possibility that any protections resulting merely from the benefits of Maryland domestic laws will be ignored and invalidated. 

So, until DOMA is struck down in its entirety and deemed wholly unconstitutional, a full-fledged celebration may be premature. Absent judicial determinations based on the Full, Faith and Credit Clause, states do not have to recognize laws of other states that directly contradict their own public policies. 

Tracey J. Coates is an associate with Paley Rothman of Bethesda, MD and a member of the firm’s Family Law and Litigation practice groups.

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Publications : Bar Bulletin : November 2013

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