Equal Protection for Children of Same-Sex Parents

Abstract

Gay rights litigation and advocacy traditionally have focused on the unequal treatment of gay and lesbian individuals and couples; less attention has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. This article asserts that a child of same-sex parents denied a government benefit has a cognizable equal protection challenge – a legal claim that is separate and distinct from that of the child’s gay and lesbian parents. It is well-settled equal protection law that the government may not treat non-marital children differently than marital children because of the moral disdain of their parents’ relationship, and, such distinctions are subject to intermediate scrutiny. Today, a majority of states exclude children of same-sex parents from the economic benefits derived from their non-biological same-sex parent, including health insurance, workers’ compensation benefits, child support and social security benefits. When medical events, divorces, lay-offs, and death occur in the lives of children of same-sex parents in these “no-protection” states, they are denied important economic safety nets – safety nets that children of married and unmarried opposite-sex parents enjoy. As a subset of non-marital children, children of same-sex parents exercise no control over their parents’ conduct but suffer concrete economic injuries because of the state’s imputation of morality upon them. Such government-sponsored discrimination is not justified on the basis of preserving traditional family values or to ensure administrative efficiency. No-protection states must dismantle the insurmountable barrier that blocks children of same-sex parents from establishing a legal relationship to their non-biological same-sex parent and place them on equal footing with their opposite-sex parented peers.