Obergefell, Our Common Humanity, and Putting Children First




Tanner Bean is an Attorney with the law firm Fabian VanCott in Salt Lake City, Utah

Robin Fretwell Wilson is Director, Institute of Government and Public Affairs, University of Illinois System & Roger and Stephany Joslin Professor of Law, University of Illinois College of Law

However a person viewed marriage equality in the run up to Obergefell v. Hodges, the 2015 United States Supreme Court case that opened marriage to same-sex couples, it showed that marriage matters to Americans. The plaintiffs in Obergefell sought access to marriage on the same grounds as heterosexual couples, for reasons as pedestrian as filing joint taxes (just one of over a thousand statutory benefits of marriage) to those as meaningful as joining their lives in ways that communities and families recognize as significant.

The poignancy of that claim for recognition and security resonated with the majority in Obergefell. Writing for the Court, Justice Kennedy wrote a virtual ode to marriage. Marriage, he said, is the bulwark against loneliness at the end of one’s life. It promises “nobility and dignity to all persons,” is “essential to our most profound hopes and aspirations,” and is central “to the human condition.” Indeed, the plaintiffs sought marriage for themselves “because of their respect—and need—for its privileges and responsibilities.” Justice Kennedy describes the  “transcendent importance of marriage” not only for the adults whose lives are bound together, but for their children. Marriage, Justice Kennedy notes, “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”

Traditionalists wed to marriage as an exclusively man-woman union argued that extending marriage to same-sex couples would cause fewer opposite-sex couples to marry[1] or lead to the legalization of polygamy.[2] But marriage rates have not bucked their pre-Obergefell trend and federal district courts have rejected claims for recognition of polygamous marriages.[3]

Obergefell, for many, signified the long-awaited recognition of the very human needs of same-sex couples. But not all saw Obergefell this way.[4] Many conservative and religious voices resisted Obergefell, doubling down on their arguments that same-sex couples should not be admitted to marriage in their spheres of influence.[5]

Importantly, efforts before Obergefell to statutorily recognize same-sex marriage while allowing religious groups to step aside from performing or celebrating those marriage ground to a halt in the immediate months and years before Obergefell.[6] Lines hardened further after Obergefell. Until Virginia’s 2020 LGBT nondiscrimination law,[7] no state had protected the full LGBT community from discrimination in housing, hiring, and public accommodations. Utah found consensus over housing and hiring in 2015, but did not reach public accommodations because no municipalities in the state had either.[8] Effectively, for five years, LGBT rights in conservative states ground to a halt. In blue states, the appetite for protecting religious liberty dried up, too.

Five years after Obergefell, this ‘I-win-you-lose’ mindset continues to dominate legislation, policymaking, and litigation. Consider Fulton v. City of Philadelphia, a case now pending before the U.S. Supreme Court. There, the parties on both sides seek a kind of purity model. One side, the religious adoption and foster care agencies that accept government funding, say they should be able to place children only with parents that match their religious convictions, despite possible systemic costs for the very children in need of loving homes. In other words, when a same-sex couple presents to adopt or foster a child, they want legally to turn them away. The other parties to the litigation contend that no agency should be permitted not to serve all couples, even if it means closure of agencies doing important work for children, and even if sectarian agencies are permitted to carve out niches in what families they serve.[10]

Both sides make compelling arguments. But litigation over the adults’ interests miss the real parties in need—the children in desperate need of a home. Certainly, the right of same-sex parents to be free from discrimination and the right of religious agencies to perform their mission are both important values. But litigation pitting one against another will not reliably serve children.

We argue that there is no need to pick one value over the other. Indeed, a number of states that legislated same-sex marriage bracketed adoption and foster care—meaning that religious agencies could make placements consistent with their religious norms about marriage.[11] Moreover, well-thought-out proposals at the federal level[12] would marry the interests in same-sex couples being able to adopt or foster without the humiliation of being turned away, while keeping religious agencies in this space to continue the tremendous good that they do.[13]

This proposal revamps an antiquated funding mechanism for foster care and adoption which paid no one for assisting families to become qualified prospective parents until the child/beneficiary was placed. This has the effect of creating large monopolists in the marketplace, putting pressure on every agency to take every comer.[14] Far better than the state picking a handful of agencies as winners and losers is to instead place the prospective adoptive or foster family in the driver’s seat by giving them funding in the first instance. Families should be able to select the agencies best fit to serve them, whether that be LGBT-friendly agencies, agencies that specialize in sibling placement, or faith-based organizations. Of course, government will still play an essential role in assuring that all prospective couples have agencies in a “catchment” area that will gladly serve them, so that no hurdles are thrown up to selecting an agency.  This self-directed mechanism found in the proposal, combined with other nondiscrimination and referral obligations, ensures that no family has to endure the humiliation of being turned away, while allowing religious agencies to continue their work. Revamping our antiquated funding system would encourage the creation of more agencies to serve children. Unlike purity models, this approach keeps all hands on deck, invites diversity and growth of agencies, and provides prospective parents an equal route to adopt or foster a child.

The Court’s decision in Fulton, of course, will impact the motivation for parties to come to the table and adopt such a common ground solution. If Fulton awards an all-or-nothing victory to either party, we fear that the balance of political risk and gain from ending a needless culture war fight will be disrupted. Children deserve better.

[1] Obergefell v. Hodges, 135 S. Ct. 2584 (2015) at 2606-07.

[2] Obegefell at 2622 (J. Roberts dissenting).

[3]Federal Judge Rejects Effort to Overturn Anti-polygamy Law’, Associate Press, 12 March 2018.

[4] Robin Fretwell Wilson, ‘Divorcing Marriage and the State Post-Obergefell’, in Robin Fretwell Wilson (ed.),The Contested Place of Religion in Family Law (Cambridge University Press 2018).

[5] ‘Why Find Common Ground?, Fairness for All Initiative.

[6] Fairness for All Initiative.

[7] J. Edward Moreno, ‘VA Gov. Northam Signs LGBT Anti-discrimination Act Into Law’, The Hill, 11 April 2020.

[8] Robin Fretwell Wilson, ‘Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, 51 Connecticut Law Review (2019).

[9] Fairness for All Initiative.

[10] Brief for Petitioners, Questions Presented, in Fulton v. City of Philadelphia, Pennsylvania, 140 S. Ct. 1104 (2020).

[11]Maps of Laws: Foster Care & Adoption Agency Regulations’, Fairness for All Initiative.

[12] Fairness for All Act, H.R. 5331, 116th Cong. (2019).

[13] See Robin Fretwell Wilson, ‘Children Caught in the Culture War of Adoption’, Top of Mind with Julie Rose, BYU Radio, 17 January  2019; Gillian Friedman, ‘Why Children Have the Most to Lose in the Latest Battle Over LGBT and Religious Rights, Deseret News, July 10, 2018; Brian Miller, ‘How Vouchers Can End the Culture War Over Adoption’, Forbes, 24 July  2018; Gillian Friedman, ‘Religious Liberty and LGBT Rights: Solutions Elusive in Adoption Conflict’, Deseret News, 16 July 2018.

[14]Solomon’s Decree: Conflicts in Adoption and Child Placement Policy’, CATO Institute, 19 July 19.