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Indiana Law Review
Volume 48 2014 Number 1

2014 MIDWESTERN PEOPLE OF COLOR
LEGAL SCHOLARSHIP CONFERENCE

IN WINDSOR’S WAKE:  SECTION 2 OF DOMA’S DEFENSE
OF MARRIAGE AT THE EXPENSE OF CHILDREN

TANYA WASHINGTON*

INTRODUCTION
The troubling trend of sidelining children’s rights and interests in the same-

sex marriage debate is evidenced by the exclusion of children from plaintiffs’
classes in the vast majority of suits challenging marriage bans.1  Despite the
direct and adverse impact of these bans on children in same-sex families, the
majority of claims asserted against these laws litigate the rights of adults as
same-sex couples and identify infringement of adults’ rights as the basis for their
invalidation.2  In the few cases that do advance children’s claims, the courts’
analyses and holdings are often framed exclusively in terms of adults’
constitutional rights.3  Notably, in Windsor v. United States, the U.S. Supreme

* Associate Professor of Law, Georgia State University College of Law; J.D., University
of Maryland School of Law; LLM, Harvard University Law School.  This Article was presented at
the Midwestern People of Color Legal Scholarship Conference in April 2014 and at Emory
University Law School’s Transformation of the Family and the Recognition and Regulation of
Intimate Lives Symposium in December 2013.  The Article was introduced at the American Bar
Association Annual Family Law Continuing Legal Education Conference in October 2013.  The
Author extends a special thanks to Professor Kimberly Norwood and to Professors Bernadette
Hartfield, Christine Gallant, Lynn Hogue, and Andrea Freeman for their invaluable editorial
comments.  She is indebted to Danielle Le Jeune and Matthew Johnson for their excellent research
assistance.  Finally, the Author expresses gratitude to her son, André Washington Thomas, and her
mother, Cynthia G. Williams, who continue to inspire her to speak, write, and work on behalf of
children.   

1. See, e.g., Henry v. Himes, No. 1:14-CV-129, 2014 WL 1418395 (S.D. Ohio Apr. 14,
2014); Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525, at *5 (M.D. Tenn. Mar. 14, 2014);
De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Sevcik v. Sandoval, 911 F. Supp. 2d 996
(D. Nev. 2012); Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012); Golinski v. U.S.
Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012); Della Corte v. Ramirez, 961 N.E.2d
601 (Mass. App. Ct. 2012).   

2. See cases cited supra note 1 and infra note 9.  
3. See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *7-9 (W.D. Ky. Feb.



2 INDIANA LAW REVIEW [Vol. 48:1

Court determined Section 3 of the Defense of Marriage Act (DOMA)4 was an
unconstitutional infringement of liberty interests held by legally married gay and
lesbian couples,5 and acknowledged and described the disabilities the law creates
for children in same-sex families.  Justice Kennedy explained:

DOMA forces same-sex couples to live as married for the purpose of
state law but unmarried for the purpose of federal law, thus diminishing
the stability and predictability of basic personal relations the State has
found it proper to acknowledge and protect.  By this dynamic DOMA
undermines both the public and private significance of state-sanctioned
same-sex marriages; for it tells those couples, and all the world, that their
otherwise valid marriages are unworthy of federal recognition.  This
places same-sex couples in an unstable position of being in a second-tier
marriage.  The differentiation demeans the couple, whose moral and
sexual choices the Constitution protects, and whose relationship the
State has sought to dignify.  And it humiliates tens of thousands of
children now being raised by same-sex couples.  The law in question
makes it even more difficult for the children to understand the integrity
and closeness of their own family and its concord with other families in
their community and in their daily lives . . . DOMA also brings financial
harm to children of same-sex couples . . . DOMA instructs all federal
officials, and indeed all persons with whom same-sex couples interact,
including their own children, that their marriage is less worthy than the
marriages of others.6

Despite the absence of children in the family at issue in Windsor, the Court’s
holding rejected DOMA’s defenders’ characterization of Section 3 as a child-

12, 2014).  Despite the children of same-sex couples involved, six in total, being named as
plaintiffs, the court’s analysis focused on the injuries and interests of the couples specifically.  Id.
at *2, *8-9.  Notably, the court limited its determination of the applicable standard of review to the
impact of the ban on the couple, stating,”it is clear that Kentucky’s laws treat gay and lesbian
persons differently in a way that demeans them.”  Id. at *7. 

4. Defense of Marriage Act § 3, 1 U.S.C. § 7 (1996) (“In determining the meaning of any
Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus
and agencies of the United States, the word ‘marriage’ means only a legal union between one man
and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite
sex who is a husband or a wife.”).  

5. United States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013).  The Court held:
DOMA is unconstitutional as a deprivation of the liberty of the person protected by the
Fifth Amendment of the Constitution. . . . The federal statute is invalid, for no legitimate
purpose overcomes the purpose and effect to disparage and to injure those whom the
State, by its marriage laws, sought to protect in personhood and dignity.  By seeking to
displace this protection and treating those persons as living in marriages less respected
than others, the federal statute is in violation of the Fifth Amendment.

Id.
6. Id. at 2694-96 (emphasis added).  



2014] IN WINDSOR’S WAKE 3

welfare measure.7  The opinion highlighted how the law deprives thousands of
children in same-sex families of economic and legal entitlements and protections
that serve their best interests, and demeans them and their families with
government-issued badges of inferiority.  

The invalidation of Section 3 represented a significant victory in the
movement toward equal recognition and treatment of gay and lesbian couples and
raised the profile of children’s rights and interests as relevant to the debate.8  The

7. Id.; see the House of Representatives Report which justifies DOMA as a means to
“encourag[e] responsible procreation and child-rearing,”  H.R. REP. NO. 104-664, pt. 5, at 2917
(1996).  For an example of the child-welfare arguments provided by opponents, see Brief on the
Merits for Respondent The Bipartisan Legal Advisory Group of the U.S. House of Representatives
at 44-49, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), U.S. S. Ct. Briefs LEXIS
280 at *74-82 (noting the “intrinsic connection between marriage and children” and arguing that
same-sex marriages do not produce unintended and unplanned offspring that the government has
an interest in protecting and fail to support the societal goals of children being raised by biological
parents employing “differing parental roles”). 

8. In previous articles and a co-authored  Supreme Court amicus brief in Windsor, this
Author has advanced children’s rights based challenges in a number of other contexts.  In the
transracial adoption context, the Author has argued that the best interests of the child standard
demands the consideration of race in placement decisions and she challenges the Multiethnic
Placement Act’s categorical prohibition of the consideration of race as a politicized departure from
meaningful application of the best interests standard.  Tanya Washington,  Loving Grutter: 
Recognizing Race in Transracial Adoptions, 16 GEO. MASON U. CIV. RTS. L.J. 1 (2005).  In the
same-sex adoption context, the Author argues that the due process rights of waiting children,
particularly children of color and other children classified as “special needs,” are infringed by state
adoption bans that categorically exclude gay and lesbian couples and individuals from the pool of
adoptive parents.  Tanya M. Washington, Throwing Black Babies Out With the Bathwater:  A
Child-Centered Challenge to Same-Sex Adoption Bans, 6 HASTINGS RACE & POVERTY L.J. 1
(2008).  She advances children’s challenges to “orphan placement bans,” and she articulates a
negative liberty interest waiting children possess against state action that categorically forecloses
the superior placement option, permanent placement, in favor of temporary or institutional care that
compromises children’s best interests.  Id.; see also Tanya M. Washington, Once Born Twice
Orphaned:  Children’s Constitutional Case Against Same-Sex Adoption Bans, 15 UTAH L. REV.
1003 (2014); Tanya Washington, Suffer Not the Little Children:  Prioritizing Children’s Rights in
Constitutional Challenges to “Same-Sex Adoption Bans,” 39 CAP. U. L. REV. 231 (2011)
[hereinafter Washington, Suffer Not the Little Children].  In the context of same-sex marriage bans,
the Author proposes a claim by children in same-sex families against marriage bans as infringing
a liberty interest in parentage incident to marriage, in violation of their substantive due process
rights.   Tanya Washington,  What About the Children?:    Child-Centered Challenges to Same-Sex
Marriage Bans, 12 WHITTIER J. CHILD & FAM. ADVOC. 1 (2012) [hereinafter Washington, What
About the Children?].  The Author co-authored an amicus brief in United States  v. Windsor
highlighting the stigmatic, dignitary, and material harms Section 3 of DOMA causes children in
same-sex families whose parents’ marriages are denied recognition.  The respondents’ cited this
amicus brief in their merits brief to the Court.  Brief for Amici Curiae Scholars of the Constitutional
Rights of Children in Support of Respondant Edith Windsor Addressing the Merits and Supporting



4 INDIANA LAW REVIEW [Vol. 48:1

holding and reasoning in Windsor has inspired a proliferation of challenges to
state marriage bans (“mini-DOMA’s”);9 thereby confirming the prophetic nature
of Justice Scalia’s observation that the opinion, despite the inclusion of language
that could cabin the applicability of the holding, would encourage challenges to
state bans.10  He predicted:

the real rationale of today’s opinion . . . is that DOMA is motivated by
‘bare . . . desire to harm’ couples in same sex marriages.  How easy it is,
indeed how inevitable, to reach the same conclusion with regard to state
laws denying same-sex couples [sic] marital status.11

Despite an avalanche of claims filed against state marriage bans across the
nation,12 all too often, challenges have failed to include children as members of
the plaintiff’s class, even while they highlight how marriage bans harm children

Affirmance, United States v. Windsor 133 S. Ct. 2675 (2013) (No. 12-307). 
9. See, e.g., Baskin v. Bogan, No. 1:14-CV-00355-RLY-TAB, 2014 WL 1568884 (S.D. Ind.

April 18, 2014); Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14,
2014) ; DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014); De Leon v. Perry, 975 F. Supp.
2d 632 (W.D. Tex. 2014); Lee v. Orr, No. 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014);
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014); Bourke v. Beshear, No. 3:13-CV-750-H,
2014 WL 556729 (W.D. Ky. Feb. 12, 2014); McGee v. Cole, No. 3:13-24068, 2014 WL 321122
(S.D. W. Va. Jan. 29, 2014); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D.
Okla. 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013); Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Garden State
Equality v. Dow, 2012 WL 540608 (N.J. Super. Ct. Law Div. Feb. 21, 2012).  See generally Henry
v. Himes, No. 1:14-CV-129, 2014 WL 1418395, at *2 (S.D. Ohio Apr. 14, 2014) (court
highlighting that “ten out of ten federal rulings since the Supreme Court’s holding in United States
v. Windsor—all declaring unconstitutional and enjoining [marriage] bans in states across the
country” (citations omitted)).  Id. at *1. 

10. Windsor, 133 S. Ct. at 2705, 2708-09 (Scalia, J., dissenting).  Justice Scalia remarked in
his dissent, “My guess is that the majority . . . needs some rhetorical basis to support its pretense
that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government
(leaving the second, state-law shoe to be dropped later, maybe next Term.)  But I am only
guessing.”  Id. at 2705; see also Tanco,2014 WL 997525, at *5.  The Court in Tanco noted that
other “courts have uniformly rejected a narrow reading of Windsor” and cited numerous cases
where preliminary injunctions were issued to preclude enforcement of “anti-recognition laws.”  Id.
at *5 n.8; see, e.g., De Leon, 975 F. Supp. 2d at 632; Lee, 2014 WL 683680; Bourke, 2014 WL
556729; Bostic, 970 F. Supp. 2d at 456; Bishop, 962 F. Supp. 2d at 1252; Obergefell, 962 F. Supp.
2d at 968; Kitchen, 961 F. Supp. 2d at 1181.

11. Windsor, 13 3 S. Ct. at 2709 (Scalia, J., dissenting) (citation omitted).  
12. As of October 12, 2014, lawsuits are pending in all states that do not currently allow

same-sex couples to marry.  Since the Supreme Court’s decision in Windsor there have been forty-
one court decisions striking down marriage bans and two decisions upholding marriage bans as
constitutional.  See PENDING MARRIAGE EQUALITY CASES, http://www.lambdalegal.org/pending-
marriage-equality-cases (last visited Oct. 12, 2014). 



2014] IN WINDSOR’S WAKE 5

in same-sex families.13  In the absence of claims by children challenging laws
adverse to their interests, the focus of litigation challenging marriage bans will
remain on protecting adults’ interests and maintaining the primacy of marriage.14

Despite Section 3’s invalidation and the utility of the Windsor opinion and
its rationale as a tool for dismantling laws that deny gay and lesbian couples the
right to marry, Section 2 of the Act remains enforceable and poses a significant
threat to children’s legal relationship with their non-biological parent.  This
provision of DOMA, which permits states to disregard valid marriages created
in states where same-sex marriage is allowed (recognition states),15 by extension,
authorizes the nullification of the filial relationship between children in same-sex
families and their non-biological parents when the family relocates to a non-
recognition state.16

13. See Bostic, 970 F. Supp. 2d at 478.  Although the child of the same-sex family at issue
in this case was not named as a plaintiff, the court acknowledged the harm the Virginia marriage
ban poses to her interests.  It observed, that:

[o]f course the welfare of our children is a legitimate state interest.  However, limiting
marriage to opposite-sex couples fails to further this interest.  Instead, needlessly
stigmatizing and humiliating children who are being raised by the loving couples
targeted by Virginia’s Marriage Laws betrays that interest.  E.S.T., like the thousands
of children being raised by same-sex couples, is needlessly deprived of the protection,
the stability, the recognition and the legitimacy that marriage conveys.

Id.  The Court presented protection and stability as derivative of marriage, rather than as inherent
in parentage.  Id. at 478-79.  The Author of this piece, in accordance with the arguments of
Professor Nancy Polikoff, believes this perspective entrenches the primacy of marriage and will
focus instead on the primacy of parentage to avoid such entrenchment.  See generally Nancy D.
Polikoff, For the Sake of All Children:  Opponents and Supporters of Same-Sex Marriage Both
Miss the Mark, 8 N.Y. CITY L. REV. 573 (2005) [hereinafter Polikoff, For the Sake of All Children
]; infra  Part III.C.  For additional perspectives on same-sex marriage from the child’s perspective,
see Ruth Butterfield Isaacson, “Teachable Moments”:  The Use of Child-Centered Arguments in
the Same-Sex Marriage Debate, 98 CAL. L. REV. 121, 131-51 (2010); Courtney G. Joslin,
Searching for Harm:  Same-Sex Marriage and the Well Being of Children, 46 HARV. C.R.-C.L.L.
REV. 81, 85-89 (2011).  

14. See Windsor, 133 S. Ct. at 2709 (Scalia, J., dissenting); but see DeBoer , 973 F. Supp.
2d at 757; Bourke, 2014 WL 556729, at *2; Ellis v. Hous. Auth. of Baltimore City, 82, A.3d 161,
163 (2013); Garden State Equality v. Dow, 82 A.3d 336, (2013).  

15. Defense of Marriage Act § 2, 28 U.S.C. § 1738C (1996).  The law specifically states: 
No State, territory, or possession of the United States, or Indian tribe, shall be required
to give effect to any public act, record, or judicial proceeding of any other State,
territory, possession, or tribe respecting a relationship between persons of the same sex
that is treated as a marriage under the laws of such other State, territory, possession, or
tribe, or a right or claim arising from such relationship.

Id.
16. In most cases, a child in a same-sex relationship will only be biologically related to one

parent.  The exception to this rule arises when the sperm donor and/or surrogate are related to both
parents.  See infra note 18. 



6 INDIANA LAW REVIEW [Vol. 48:1

At common law, parentage was determined two ways:  by a child’s birth to
her mother and by the mother’s marriage to her husband at the time of the child’s
birth.17  Children in same-sex families can only be biologically related to one of
their parents and consanguinity establishes and protects the filial relationship.18 
The relationship between the child and her non-biological parent, however, exists
as ancillary to the marriage or is constructed by adoption, by contract, or by
consent.19  The legal status of that relationship is vulnerable to invalidation when
the family relocates to a state that does not acknowledge the legal status of the
parents’ marital relationship and rights, relationships and claims arising
therefrom.20  This Article identifies the nullification of an existing filial
relationship, authorized by Section 2 of DOMA, as a legal deprivation that
unjustifiably infringes children’s constitutional rights and provides a basis for an
independent claim challenging Section 2 by children in same-sex families.

Arguably, Section 2 only operates to expressly authorize states to do what
they could do anyway—withhold recognition of out-of-state, same-sex marriages
by statute or constitutional amendment and void the parent-child relationships
attendant to those unions.21  So, one could argue, state bans are the more
appropriate target for children’s constitutional challenges, not Section 2 of
DOMA.22  However, Section 2 permits states to eschew their constitutional duty

17. Michael H. v. Gerald D., 491 U.S. 110, 115 (1989).  
18. If the couple is a gay couple, one of the fathers would have donated his sperm.  If the

couple is a lesbian couple, one of the mothers would have used her egg, though the other mother
could be the gestational mother who carries and gives birth to the child.  Despite a strong
connection to the child for  nine  months, gestational mothers are not considered to be biologically
related to the child.  In re Adoption of Sebastian, 879 N.Y.S.2d 677, 681 (2009).  

19. See infra  Part II.  
20. See, e.g., Henry v. Himes, No. 1:14-CV-129, 2014 WL 1418395, at *3 (S.D. Ohio Apr.

14, 2014) (discussing that in defending Ohio’s non-recognition law, Defendants take “the position
that they are prohibited under Ohio law from recognizing [Plaintiffs’] Massachusetts marriage and
the marital presumption of parentage that should apply to this family for purposes of naming both
parents on the baby’s birth certificate. . . . Without action by this Court, Defendants . . . will list
only one of these Plaintiffs as a parent on the baby’s birth certificate . . . .”).   

21. See Joshua Baker & William Duncan, As Goes DOMA . . . Defending DOMA and the
State Marriages Measures, 24 REGENT U. L. REV. 1, 8 (2012); William Baude, Beyond DOMA:
Choice of State Law in Federal Statutes, 64 STAN. L. REV. 1371, 1392 (2012); Mark Strasser, The
Legal Landscape Post-DOMA, 13 J. GENDER RACE & JUSTICE 153, 158 (2009).  But see Adar v.
Smith, 639 F.3d 146, 160 ( 5th Cir. 2011); Pamela K. Terry, E Pluribus Unum? The Full Faith and
Credit Clause and Meaningful Recognition of Out of State Adoptions, 80 FORDHAM L. REV. 3093,
3134 (2012).  

22. See  Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525, at *5-6 (M.D. Tenn. Mar.
14, 2014); Bishop v. United States  ex rel. Holder, 96 2 F. Supp. 2d 1 252, 1266 (N.D. Okla. 2014)
(rejecting challenge to Section 2 and explaining, “The injury of non-recognition stems exclusively
from state law . . . and not from the challenged federal law.”); see also Mary L. Bonauto, DOMA
Damages Same-Sex Families and Their Children, 32 FAM. ADVOC. 10, 13 (2010) (“Legal
challenges to section [sic] 2 of DOMA have been few, and none have succeeded, at least in part



2014] IN WINDSOR’S WAKE 7

to respect existing legal parent-child relationships created in jurisdictions that
permit gay marriage.23  Naming children as plaintiffs in cases with their parents
undermines the government’s defense of Section 2 as a child protective measure
with direct evidence to the contrary.  Children’s claims also challenge the
government to establish that the non-recognition laws Section 2 authorizes serve,
rather than harm, children’s interests.  A favorable holding in such suits would
highlight the direct and harmful impact of marriage bans on children in same-sex
families and would present children’s rights and interests as grounding a viable
constitutional claim,24 rather than treating them as mere factors in the
constitutional calculus, as the Windsor majority did.25  

While the substance of constitutional claims against state bans would be
almost identical to claims challenging Section 2, the latter would, like the
decision in Windsor, have greater symbolic and precedential value.  A holding
invalidating Section 2 as unconstitutionally infringing children’s constitutional
rights could animate and provide jurisprudential support for challenges to state
bans nationwide.  By comparison, prevailing in suits challenging state bans
would have persuasive, not precedential, effect outside of the state invalidating
the ban.26  

Though the Windsor Court referenced the stigmatic and dignitary harm
children experience when their families are denied recognition, Section 3’s

because it is the state’s non-recognition law that presents the impediment to recognition, not section
[sic] 2 itself.”).   

23. There is a split of authority as to the existence of a public policy exception to the Full
Faith and Credit Clause, which would mean Section 2 authorizes states to enact non-recognition
laws in violation of principles of comity.  See cases cited infra note 51.  

24. Just as Justice Scalia noted the applicability of the rationale underwriting the Court’s
decision in Windsor to state challenges, the claims proposed in this Article can be used to frame and
assert children’s challenges to mini-DOMA’s that proliferate in Windsor’s wake.  United States v.
Windsor, 133 S. Ct. 2675, 2705, 2708-09 (2013) (Scalia, J., dissenting); see also Lewis A.
Silverman, Suffer the Little Children:  Justifying Same-Sex Marriage from the Perspective of the
Child , 102  W. VA. L. REV. 411, 412 (1999) (discussing that the preponderance of the dialogue
about same-sex marriage concentrates on the adult partners and their derivative benefits from the
relationship; “precious little” focus is given to the rights of a child who may be a product of a same-
sex relationship.).  

25. Windsor, 133 S. Ct. at 2694-96; see also Tanco, 2014 WL 997525 at *7.  In the Tanco 
case, several of the same-sex families bringing suit included children and the plaintiffs advanced
arguments relating to the direct and harmful impact of Tennessee’s non-recognition statute and
constitutional amendment on their children.  Noting the “immanent risk of potential harm to their
children during their developmental years from the stigmatization and denigration of their family
relationship,” the court acknowledged such potential harm by stating :

[u]nder the existing state of the law in Tennessee, upon the birth of their child, Dr. Jesty
will not be recognized as the child’s parent, and many of the legal rights that would
otherwise attach to the birth of a child . . . will not apply to Dr. Jesty or to the child. 

Id. at *2.  However, children are not named plaintiffs.  Id. at *2-3. 
26. See Tanco, 2014 WL 997525, at *5 n.8.  



8 INDIANA LAW REVIEW [Vol. 48:1

impact on children was framed principally in terms of the material deprivation
children experience (e.g., social security benefits, health insurance coverage,
etc.).27  To be sure, these deprivations also emanate from enforcement of Section
2 by non-recognition states.  Children in married same-sex families could assert
that, though they are similarly situated to children in married opposite-sex
families, state bans deprive them of certain material entitlements and protections
because of their parents’ sexual orientation, in violation of their equal protection
rights.28  This argument is supported by scholarship proposing and analyzing
children’s substantive equal protection claims in a variety of contexts, including
same-sex marriage laws. 29  

In addition to advancing an equal protection claim, this Article focuses on
how Section 2 deprives children in same-sex families of the security, consistency,
and permanency that are defining features of the filial relationship, and makes the
claim that these deprivations constitute substantive due process infringements.30 
Children’s constitutional protections and entitlements encompass more than
tangible benefits, expressed in monetary terms.  This Article seeks to highlight
intangible, substantive qualities inherent in the filial relationship that deserve
constitutional protection.  Beyond dignitary and stigmatic harms, courts should
regard depriving children of the permanency, stability, and security inherent in
the legal parent-child relationship as an infringement of the kind and quantum of
care secured by the “best interests of the child” standard and as violating
children’s constitutional rights.31  The focus on Section 2’s detrimental impact

27. Windsor, 133 S. Ct. at 2694-96 (“DOMA also brings financial harm to the children of
same-sex couples.  It raises the cost of health care for families by taxing health benefits provided
by employers to their workers’ same-sex spouses.  And it denies or reduces benefits allowed to
families upon the loss of a spouse and parent, benefits that are an integral part of family security.”). 

28. See infra Part IV.A.  
29. Brief for Amici Curiae Scholars of the Constitutional Rights of Children in Support of

Respondant Edith Windsor Addressing the Merits and Supporting Affirmance, United States v.
Windsor 133 S. Ct. 2675 (2013) (No. 12-307) (noting “[t]he material and intangible deprivations
caused by laws that [ ] prescribe same-sex marriage impair children’s interests and arguably infringe
children’s rights”); see also Catherine E. Smith, Equal Protection for Children of Gay and Lesbian
Parents:  Challenging the Three Pillars of Exclusion—Legitimacy, Dual-Gender Parenting, and
Biology, 28 LAW & INEQ. 307 (2010) [hereinafter Smith, Challenging the Three Pillars ]; Catherine
E. Smith, Equal Protection for Children of Same-Sex Parents, 90 WASH. U. L. R.  1589 (2013)
[hereinafter Smith, Equal Protection for Children]; Barbara Bennett Woodhouse, Hatching the
Egg:  A Child-Centered Perspective on Parents’ Rights, 14 CARDOZO L. REV. 1747 (1993); Barbara
Bennett Woodhouse, “Out of Children’s Needs, Children’s Rights”:  The Child’s Voice in Defining
the Family, 8 BYU J. PUB. L. 321 (1994) [hereinafter Woodhouse, “ Out of Children’s Needs,
Children’s Rights”].

30. See infra Part IV.B; see also Washington, What About the Children?, supra note 8, at 1.
31. In addition to protecting certain substantive rights, the Due Process clause also provides

procedural protection by requiring adherence to fair procedural processes when depriving persons
of certain liberty interests.  Whitney v. California, 274 U.S. 357, 373 (1927).  There is a viable



2014] IN WINDSOR’S WAKE 9

on children’s legal relationship with their non-biological parent also engages a
broader query unanswered by the U.S. Supreme Court in Michael H. v. Gerald

procedural due process challenge available to children in same-sex families against Section 2 of
DOMA because it authorizes laws that enforce categorical, self-executing invalidation of their filial
relationship with their biological parent, without due process before being deprived of their liberty
interest in that relationship.  In  Stanley v. Illinois, 405 U.S. 645 (1972), the U.S. Supreme Court
invalidated a law that deprived an unmarried father of his parentage rights without a hearing to
determine his parental rights.  The Court’s reasoning for its determination provides ample support
for a procedural due process claim by children in same-sex families whose filial relationships are
invalidated by non-recognition laws.  Id.  It explained:

Stanley is treated not as a parent, but as a stranger to his children, and the dependency
proceeding has gone forward on the presumption that he is unfit to exercise parental
rights. . . .  We observe that the State registers no gain toward its declared goals when
it separates children from the custody of fit parents.  Indeed, if Stanley is a fit father, the
State spites its own articulated goals when it needlessly separates him from his family.
. . .  Procedure by presumption is always cheaper and easier than an individualized
determination.  But when, as here, the procedure forecloses the determinative issues of
competence and care, when it explicitly disdains present realities in deference to past
formalities, it needlessly risks running roughshod over the important interests of both
parent and child.  It therefore cannot stand (citation omitted). . . .  The State’s interest
in caring for Stanley’s children is de minimis if Stanley is shown to be a fit father.  It
insists on presuming, rather than proving, Stanley’s unfitness solely because it is more
convenient to presume than to prove.  Under the Due Process Clause that advantage is
insufficient to justify refusing a father a hearing when the issue at stake is the
dismemberment of his family.

Id. at 648-58.  The non-recognition laws Section 2 authorizes, like the law at issue in  Stanley ,
automatically nullify the filial relationship between a child in a same-sex family and her non-
biological parent based on the presumption that gay parenting is inherently harmful.  See Bostic v.
Rainey, 970 F. Supp. 2d 456, 479-80 (E.D. Va. 2014) (The Court, relying upon the U.S. Supreme
Court’s decision in Stanley, opined:  “The ‘for the children rationale’ rests upon an
unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents. 
Forty years ago a similarly unfortunate presumption was proffered to defend a law in Illinois. . . .
The Supreme Court said that such a startling presumption ‘cannot stand’ (citation omitted). . . . The
state’s compelling interests in protecting and supporting our children are not furthered by a
prohibition against same-sex marriage.”).  In addition to dispensing with procedural due process
guarantees, these laws dispense with the individualized, fact specific determinations of parental
fitness required by the best interest of the child standard, which is controlling in the custody,
visitation and adoptions contexts.  See infra note 163.  A children’s procedural due process
challenge also has the advantage of more easily clearing standing obstacles, particularly when
advanced against a non-recognition law like Georgia’s which excludes claims related to or arising
out of out-of-state same-sex marriages from the jurisdictional authority of its state courts.  See infra
Part I.A, Part II.  Despite the viability and advantages of children’s procedural due process claim
against Section 2, this Article limits its focus to children’s equal protection and substantive due
process entitlements because the Court’s decision in Windsor focused on those constitutional
guarantees.  



10 INDIANA LAW REVIEW [Vol. 48:1

D:  whether children have a constitutionally protected right to a legal relationship
with a parent.32

Part I of this Article introduces Georgia law, which prohibits gay marriage
by statute and constitutional amendment, to illustrate how Section 2 of DOMA
authorizes the abrogation of a filial relationship created in a recognition state
between a child and her non-biological parent.  This section also explains how
non-biological, legal parentage, whether created as incident to a valid marriage,
by contract, by law, or by intent, is vulnerable to invalidation in non-recognition
states.  Part II describes how children plaintiffs can satisfy standing requirements
in jurisdictions like Georgia, which, in addition to banning gay marriage,
forecloses all claims and rights relating to same-sex marriage, from litigation in
its courts.  

Part III analyzes the deprivation permitted by Section 2 within the context of
the “best interests of the child” standard, which defines the nature and scope of
care to which children are entitled and which recognizes the primacy of the filial
relationship.33  It acknowledges and responds to a critique that an expansive
reading of children’s rights would have the adverse and corresponding effect of
limiting parental rights in a variety of contexts.  This portion of the Article
engages the scholarship of Professor Nancy Polikoff,34 who warns against the
entrenchment of marriage, and explains how the argument advanced here is
preoccupied with the actual benefits attendant to the parent-child relationship,
not the presumed benefits of the marital relationship.  Part IV conducts the Equal
Protection and Substantive Due Process analysis, considers the applicable level
of constitutional scrutiny, and examines whether the laws Section 2 authorizes
are justified by a state interest in negating existing filial relationships.  This
section highlights the advantage that children’s claims may enjoy over adult
claims against marriage bans, as the former arguably triggers a heightened level
of constitutional scrutiny.35  The Article concludes with a determination that
Section 2’s impact on children in same-sex families can be said to serve neither
compelling nor legitimate governmental ends and is therefore unconstitutional. 

32. Michael H. v. Gerald D., 491 U.S. 110, 1 30-31 (1989).  The facts in  Michael H.  raised
the issue of whether a child resulting from an extramarital affair, but born into an existing, though
admittedly dysfunctional marriage, could have a constitutionally protected relationship with her
biological father and her mother’s husband.  This Article will address the Court’s relevant holding
and rationale.  Id.; see infra text accompanying notes 193-205.  

33. Gomez v. Perez, 409 US 535, 538 (1973) (referencing the “substantial benefits accorded
[to] children generally”).  Id.  

34. See infra note 242. 
35. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988); Plyler v. Doe, 457 U.S. 202, 219-20

(1982) (noting that “children who are plaintiffs in these cases are special members” of the legal
class being analyzed); Trimble v. Gordon, 430 U.S. 762, 767 (1977); Weber v. Aetna, 406 U.S.
164, 168 (1972) ; Levy v. Louisiana, 391 U.S. 68, 71 (1968).  



2014] IN WINDSOR’S WAKE 11

I.  ARE YOU MY MOTHER?  WHO’S YOUR DADDY?:  LEGAL PARENTAGE IN
SAME-SEX  FAMILIES IN NON-RECOGNITION STATES

A.  The Workings of DOMA and “Mini-DOMA’s”
Even as the majority in Windsor invalidated Section 3 of DOMA, it

acknowledged, “Section 2 . . . allows States to refuse to recognize same-sex
marriages performed under the laws of other States.”36  The origins of Section 2
of DOMA can be traced to Baehr v. Lewin,37 a 1993 decision by the Hawaiian
Supreme Court, in which the state was required to provide a strong justification
for its marriage ban.38  On remand, the state failed to satisfy its burden,39
however, the hope the decision inspired as movement toward marriage equality
was extinguished by an amendment to the Hawaiian Constitution inviting
legislators to prohibit same-sex marriage by statute.40  Accepting the invitation,
the Hawaiian legislature enacted a marriage ban foreclosing recognition of same-
sex marriage in the state and muting the impact of Baehr’s holding.41 
Nevertheless, the case provoked alarm among opponents of same-sex marriage,
who feared that if gay marriage were to become legal in Hawaii, which boasts a
breathtaking backdrop for weddings and honeymooners, states throughout the
nation would have been required to recognize the marital status of all same-sex
couples married in Hawaii.42  DOMA was enacted as a prophylactic measure to

36. United States v. Windsor, 133 S. Ct. 2675, 2682-83 (2013).  
37. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).  
38. Id. at 67 (holding sex to be a suspect class for the purposes of the equal protection

analysis and requiring, on remand, that the state satisfy strict scrutiny).  
39. Baehr v. Mike, No. 91-1394, 1996 WL 694235, at *21 (Haw. Cir. Ct. Dec. 3, 1996).  
40. HAW. CONST. art. I, § 23 (“The legislature shall have the power to reserve marriage to

opposite-sex couples.”).  On November 13, 2013, Hawaii became the sixteenth jurisdiction in the
United States to extend the freedom to marry to same-sex couples when Gov. Neil Abercrombie
signed the freedom to marry into law.   

41. HAW. REV. STAT. § 572-1 (1994).  
42. Congress was concerned that “if Hawaii (or some other State) recognizes same-sex

‘marriages,’ other States that do not permit homosexuals to marry would be confronted with the
complicated issue of whether they are nonetheless obligated under the Full Faith and Credit Clause
of the United States Constitution to give binding legal effect to such unions.”  H.R. REP. NO.  104-
664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2913; see also Elizabeth Kristen, The Struggle
for Same-Sex Marriage Continues, 14 BERKELEY WOMEN’S L.J. 104, 113 (1999) (noting that
DOMA was enacted as part of the “backlash” against Hawaii’s consideration of legalizing same-sex
marriage); Rebecca S. Paige, Wagging the Dog—If the State of Hawaii Accepts Same-Sex Marriage
will Other States Have To?:  An Examination of Conflict of Laws and Escape Devices, 47 AM. U.
L. REV. 165, 171 (1997) (“If the Hawaii Supreme Court ultimately determines that the marriage
license statute is unconstitutional and recognizes same-sex marriages, proponents of same-sex
marriage insist that other states must recognize such marriages under the Full Faith and Credit
Clause, or alternatively that conflict of laws rules should be invoked to expand same-sex marriage
beyond the boundaries of the sovereign State of Hawaii.”). 



12 INDIANA LAW REVIEW [Vol. 48:1

ensure that same-sex marriages created in one state did not automatically enjoy
recognition in other states, and effectively legalize same-sex marriage throughout
the nation.

The text of Section 2 makes clear,  
No State, territory, or possession of the United States, or Indian tribe,
shall be required to give effect to any public act, record, or judicial
proceeding of any other State, territory, possession, or tribe respecting
a relationship between persons of the same sex that is treated as a
marriage under the laws of such other State, territory, possession, or
tribe, or a right or claim arising from such relationship.43

Many claims about the constitutionality of Section 2 focus on fundamental
precepts of federalism and adults’ constitutional rights.44  Some legal theorists
posit that because Section 2 allows states to disregard the validity of a marriage
legally created in another state, it violates the Full Faith and Credit Clause.45 
This argument is based upon the understanding that the Full Faith and Credit
Clause imposes a constitutional duty on states to afford judgments by sister-states
the same effect they would enjoy in their state of issuance.46  Historically, states
have routinely recognized marriages effectuated in other states, despite
considerable variance among marital prerequisites.47  Accordingly, they argue,
Section 2’s grant of authority to states to decline to recognize same-sex marriages
sister-states represents a substantial departure from this practice.48  Other

43. Defense of Marriage Act § 2, 28 U.S.C. § 1738C (1996) (emphasis added).  
44. See, e.g., Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir. 2006); Palladino v.

Corbett, No. 13-5641, 2014 WL 830046 (E.D. Penn. Mar. 4, 2014); Bishop v. United States ex rel.
Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014).  

45. U.S. CONST. art. IV, § 1 (“ Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State.”); 28 U.S.C. § 1738C (allowing states
specially to not “give effect to any public act, record, or judicial proceeding of” another state); see
also Constitutional Constraints on Interstate Same-Sex Marriage Recognition, 116 HARV. L. REV.
2028 (2003); Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause
and the Defense of Marriage Act, 32 CREIGHTON L. REV. 255 (1998). 

46. Thompson v. Thompson, 484 U.S. 174, 174 (1988); Estin v. Estin, 334 U.S. 541, 545-46
(1948); Mills v. Duryee, 11 U.S. 481, 485 (1813).   

47. United States v. Windsor, 133 S. Ct. 2675, 2691 (2013).  Justice Kennedy observed in 
Windsor , “Marriage laws vary in some respects from State to State.  For example, the required
minimum age is 16 in Vermont, but only 13 in New Hampshire.  Likewise the permissible degree
of consanguinity can vary (most States permit first cousins to marry, but a handful—such as Iowa
and Washington—prohibit the practice).”  Id. (citations omitted); see also Joanna L. Grossman,
Resurrecting Comity:  Revisiting the Problem of Non-Uniform Marriage Laws, 84 OR. L. REV. 
433, 442-46 (2005); U.S. MARRIAGE LAWS, http://www.usmarriagelaws.com (last visited Mar. 31,
2014).  

48. Grossman, supra note 47, at 477-78; Lynn D. Wardle, Non-Recognition of Same-Sex
Marriage Judgments Under DOMA and the Constitution, 38 CREIGHTON L. REV. 365, 385 (2005)
(“[O]n its face, the DOMA interstate judgment recognition provision seems to contradict the full



2014] IN WINDSOR’S WAKE 13

scholars contend that the Full Faith and Credit Clause only requires states to
respect judgments issued by other state courts49 and because marriage is not a
judgment, it is not entitled to comity.50  In addition, some argue that the common
law public policy exception to the Clause may justify disregarding same-sex
marriages where recognition of such unions would violate a state’s public policy,
notwithstanding Section 2.51  However, the existence of such an exception is the
subject of some debate among courts and scholars.52  Opponents of Section 2

faith and credit Act and doctrine of mandatory interstate judgment recognition.”). 
49. Adar v. Smith, 639 F.3d 146, 160 ( 5th Cir. 2011) (noting that the U.S. Supreme Court

“continues to maintain a stark distinction between recognition and enforcement of judgments under
the full faith and credit clause”).  The U.S. Supreme Court has noted a distinction between the
application of full faith and credit to public acts, which may be subject to a public policy exception,
and judicial proceedings, which do not fall within the scope of a public policy exemption.  Baker
v. Gen. Motors Corp., 522 U.S. 222, 232 (1988) (stating, “Our precedent differentiates the credit
owed to laws (legislative measures and common law) and to judgments.”); see also Magnolia
Petroleum Co. v. Hunt, 320 U.S. 430, 437 (1943).    

50. See generally Grossman, supra note 47. 
51. Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1021 (D. Nev. 2012) (finding that the

“protection of Nevada’s public policy is a valid reason for the State’s refusal to credit the judgment
of another state, lest other states be able to dictate the public policy of Nevada”); Anders e n v. King
County, 138 P.3d 963, 1005 (Wash. 2006) (Alexander, C.J., concurring) (“Where foreign law
clearly violates our State’s strong public policy, there is an important and well-established
exception to the rule for recognizing foreign law.  This exception probably requires that
Washington courts would not recognize same-sex ‘ marriage’ even in the absence of DOMA.”); In
re Marriage of J.B. and H.B., 326 S.W.3d 654, 670 (Tex. Ct. App. 2010).  But see Adar, 639 F.3d
at 179 (noting that there is “no roving public policy exception  to the full faith and credit  that is
owed to out-of-state judgments.”); Baker, 522 U.S. 222 at 233-34; Estin, 334 U.S. at 546 (finding
that the Full Faith and Credit Clause “ordered submission by one State even to hostile policies
reflected in the judgment of another State, because the practical operation of the federal system,
which the Constitution designed, demanded it”). 

52. Compare  Borman v. Borman, No. 2014CV36, 2014 WL 4251133, at *4 (Tenn. Cir. Ct.
Aug. 5, 2014) (“The laws of Iowa concerning same sex marriage is so diametrically opposed to
Tennessee’s laws, and Tennessee’s own legitimate public policy concerning same-sex marriage, that
Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage
of a same-sex couple in Iowa.”), with Henry v. Himes, No. 1:14-CV-129, 2014 WL 1418395, at
*17 n.24 (S.D. Ohio Apr. 14, 2014) (explaining, “The Supreme Court has thus rejected any notion
that a state may disregard the full faith and credit obligation simply because the state finds the
policy behind the out-of-state judgment contrary to [its] own public policy.” (citing Baker, 522 U.S.
at 233 (1988)); see also Barbara J. Cox, Adoptions by Lesbian and Gay Parents Must be
Recognized by Sister States Under the Full Faith and Credit Clause Despite Anti-Marriage Statutes
That Discriminate Against Same-Sex Couples, 31 CAP. U. L. REV. 751, 753 (2003) (“Differences
between the states on local public policy, significant in whether one state will recognize the statutes
of another state, do not provide exceptions to the constitutional command to recognize a sister
state’s valid, final judgments.”); Deborah L. Forman, Interstate Recognition of Same-Sex Parents
in the Wake of Gay Marriage, Civil Unions, and Domestic Partnerships, 46 B.C. L. REV. 1, 78



14 INDIANA LAW REVIEW [Vol. 48:1

theorize that it violates the equal protection and substantive due process rights
of married same-sex couples by allowing non-recognition states to deny their
marital status.53   

Section 2 authorizes non-recognition states to invalidate both out-of-state,
same-sex marriages and legal parentage between a child and her non-biological
parent that exists as incident to the marriage, in violation of the child’s equal
protection and substantive due process rights.  Giving support to a claim that
Section 2 infringes a child’s constitutional rights to a filial relationship, one New
York Surrogate Court judge cautioned: 

Currently there are explicit prohibitions against same-sex marriages in
forty-four states . . . Without a change in these laws, or an unlikely
expansion of the Full Faith and Credit Clause jurisprudence, these clear
legislative statements of public policy would appear to permit courts of
those states to deny recognition of same-sex marriages contracted
elsewhere, and, arguably, also to legal rights flowing from those
marriages, including presumptive parenthood.  Such a position is
supported by DOMA, . . . [which] not only defines marriage as solely a
relationship between a man and a woman, but also appears to allow the
states to deny recognition of same-sex marriages validly contracted
elsewhere.54

There are presently twenty states that prohibit same-sex marriage by statute
and/or constitutional amendment.55  Georgia has one of the most comprehensive
set of laws prohibiting same-sex marriage and, therefore, provides the ideal
context within which to assert children’s constitutional challenges to Section 2.56 

(2004) (“States are not free to refuse to enforce a judgment on public policy grounds.”).  
53. See Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir. 2006); Palladino v. Corbett,

No. 13-5641, 2014 WL 830046 (E.D. Penn. Mar. 4, 2014); Bishop v. United States ex rel. Holder,
962 F. Supp. 2d 1252 (N.D. Okla. 2014).  Adults have also advanced claims that Section 2
infringed their right to travel by jeopardizing the legal status of the relationship between the child
and her non-biological parent when the family traveled into a non-recognition state.  See, e.g.,
Finstuen v. Crutcher, 496 F.3d 1139, 1143 (10th Cir. 2007); Tanco v. Haslam, No. 3:13-CV-01159,
2014 WL 997525, at *2 (M.D. Tenn. Mar. 14, 2014). 

54. In re Adoption of Sebastian, 879 N.Y.S.2d 677, 683-84 (2009) (emphasis added)
(citations omitted).  

55. It is important to note that the exact number of states that do and do not provide for
marriage equality is changing, even as of the writing of this Article.  As of October 12, 2014 almost
one-half of states and the District of Columbia allow same-sex marriage.  Erik Eckholm, Gay
Marriage Is Upheld in Idaho and Nevada, N.Y. TIMES, Oct. 7, 2014, http://www.nytimes.
com/2014/10/08/us/same-sex-marriage-bans-struck-down-in-idaho-and-nevada.html?_r=0(“[T]he
number of states authorizing same-sex marriage, which was 19 last week and 24 as of Monday, is
likely to approach 35 in coming weeks, as the legal aftermath of the four appeals-court decisions
issued to date plays out.”). 

56. Larry Copeland, Seven Georgian Challenging State’s Gay Marriage Ban, USA TODAY
(Apr. 22, 2014), http://www.usatoday.com/story/news/nation/2014/04/22/georgias-gay-marriage-



2014] IN WINDSOR’S WAKE 15

Several Georgia statutes and a constitutional amendment proscribe gay marriage,
and, as an added guarantee of exclusion, Georgia courts are divested of
jurisdiction over cases, claims and rights related to the prohibited unions.  The
jurisdictional obstacle precludes litigation of claims and rights that derive from
the marriage such as legal parentage between a child and her non-biological
parent, custodial rights, visitation rights, claims to material entitlements and
protections, and claims relating to the security, permanency, and stability
inherent in the filial relationship.  Though, arguably, these deprivations result
from non-recognition laws generally, Georgia law invokes Section 2 of DOMA
to create the most severe consequences for children in same-sex families:  the
voiding of their legal relationship with their non-biological parent and denial of
access to the courts to enforce the benefits, protections and parental
responsibilities inherent in an existing filial relationship.

The Georgia Constitution provides in relevant part:
This state shall recognize as marriage only the union of man and woman. 
Marriages between persons of the same sex are prohibited in this state. 
No union between persons of the same sex shall be recognized by this
state as entitled to the benefits of marriage.  This state shall not give
effect to any public act, record, or judicial proceeding of any other state
or jurisdiction respecting a relationship between persons of the same sex
that is treated as a marriage under the laws of such other state or
jurisdiction.  The courts of this state shall have no jurisdiction to grant
a divorce or separate maintenance with respect to any such relationship
or otherwise to consider or rule on any of the parties’ respective rights
arising as a result of or in connection with such relationship.57

The Georgia statute establishing the strongest prohibition against same-sex
marriage provides: 

It is declared to be the public policy of this state to recognize the union
only of man and woman.  Marriages between persons of the same sex are
prohibited in this state.  No marriage between persons of the same sex
shall be recognized as entitled to the benefits of marriage.  Any marriage

ban-challenged/8007629/.  On April 22 three gay couples and one individual filed suit challenging
Georgia’s constitutional amendment banning gay marriage as violating their equal protection rights. 
Id.  Despite the presence of children in two of the families, children were not named plaintiffs in
the suit.  Id.  The state of Georgia’s defense of its exclusionary marriage laws centers on how they
protect and serve the interests of children.  Its motion to dismiss provides in pertinent part, “The
challenged laws . . . rationally further Georgia’s legitimate interest in ensuring legal frameworks
for protection of children of relationships where unintentional reproduction is possible; ensuring
adequate reproduction; [and] fostering a child-centric marriage culture that encourages parents to
subordinate their own interests to the needs of their children . . . .”  Defendant Deborah Aderhold’s
Brief in Support of Her Motion to Dismiss the Complaint at 33, Innis v. Aderhold, (2014) (No.
1:14-CV-01180-WSD), 2014 WL 3828018. 

57. GA. CONST. art. I, § 4, para. 1 (emphasis added).  



16 INDIANA LAW REVIEW [Vol. 48:1

entered into by persons of the same sex pursuant to a marriage license
issued by another state or foreign jurisdiction or otherwise shall be void
in this state.  Any contractual rights granted by virtue of such license
shall be unenforceable in the courts of this state and the courts of this
state shall have no jurisdiction whatsoever under any circumstances to
grant a divorce or separate maintenance with respect to such marriage
or otherwise consider or rule on any of the parties’ respective rights
arising as a result of or in connection with such marriage.58

Georgia’s statutory and constitutional law, limiting jurisdiction to exclude
claims and disputes arising from or relating to same-sex unions, echoes Section
2’s exemption of “any . . . judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons of the same sex
that is treated as a marriage under the laws of such other State, or a right or claim
arising from such relationship” from respect by non-recognition states.59  This
language implicates the legal status of parent-child relationships ancillary to a
legal marriage considered void in a non-recognition state, and parent-child
relationships constructed by law, by contract, by consent, and by estoppel that
rely upon recognition of the marital relationship.  Section 2 of DOMA and the
laws it authorizes, like Georgia’s, extinguish the filial relationship between a
child and her non-biological parent, in violation of the child’s constitutional
rights.

B.  Constructing Legal Parentage
The marital presumption of parentage affords the most secure guarantee of

legal parentage, second only to biology-based parentage, in the opposite-sex
marriage context.60  In the “traditional” marriage context, the presumption of
legal parentage with respect to children born within the marriage enjoys
substantial constitutional protection, even where the child is not biologically
related to the father and the child results from an adulterous affair.61  The legal
status of the relationship between the child and her non-biological father derives

58. O.C.G.A. § 19-3-3.1 (2013) (emphasis added).  
59. Defense of Marriage Act § 2, 28 U.S.C. § 1738C (1996).  
60. Michael H. v. Gerald D., 491 U.S. 110, 124-27 (1989); Wendy G-M v. Erin G-M, 2014

WL 1884485, at *9 (N.Y. Sup. Ct. May 7, 2014) (describing parentage incident to a valid marriage
as “reflecti[ve] of the strong presumption, displayed across the boundaries of many states,
connecting marriage to parenthood”); Alison Harvison Young,  Reconceiving the Family:
Challenging the Paradigm of the Exclusive Family, 6 AM. U. J. GENDER & L 505, 528-29 (1998)
(noting that, in Michael H., “Justice Scalia’s plurality opinion is a ringing endorsement of both the
vision of the traditional family as a ‘good’ which the law properly protects, and also, more
implicitly, of the utility of the exclusiveness framework as a way to bolster and protect the
traditional family”).  

61. Michael H., 491 U.S. at 127.  Pursuant to the adage, “mama’s baby daddy’s maybe,” the
marital presumption of parentage only applies to fathers who are married to the mother at the time
of the child’s birth but who are not biologically related the child.  Id.  



2014] IN WINDSOR’S WAKE 17

from the existing marriage, and the child’s entitlement to the benefits and
protections afforded by the filial relationship is not dependent upon the family’s
state of domicile.  

In sharp contrast, the relationship between a child born to same-sex married
parents who agree to and participate in her conception, birth, and co-parenting
is vulnerable to invalidation in states that do not recognize the parents’ marital
relationship.  Children with a filial relationship with their non-biological parent
that derives from a marriage Section 2 authorizes states to void are vulnerable to
the nullification of that relationship and deprived of the constitutional benefits
and protections it secures for them.  As a result, Section 2 authorizes states to
invalidate the most secure guarantee of legal parentage for children and their
non-biological parents. 

When a same-sex family moves to a non-recognition state, like Georgia, the
marriage and the attendant filial relationship between the child and the non-
biological parent are categorically and automatically void and the non-biological
parent is rendered a legal stranger to the child.  The net effect of not recognizing
an existing filial relationship is deprivation of the benefits and protections
inherent in the legal parent-child relationship.  In a non-recognition state the non-
biological parent could be denied employer-provided health care benefits, be
unable to make emergency medical and educational decisions, be unable to
obtain her child’s Social Security card, and be unable to travel internationally
with her child.62  Nullification of the legal status of her relationship with her
child deprives the child of material entitlements and protections and
compromises the security, permanence, and stability that a filial relationship
provides.

A simple story illustrates the potential impact of Georgia’s non-recognition
laws, authorized by Section 2, on the legal status of existing parent-child
relationships in same-sex families.  Assume Jennifer was born in California one
year after her mothers’ marriage.  Jennifer is biologically related to Carol, who
carried and gave birth to her.  Carol and Susan agreed to and participated in
Jennifer’s conception by in vitro fertilization and the couple agreed to co-parent
their daughter.  Susan, who serves in the U.S. military, is relocated to Fort
Benning, one of many military bases in the state of Georgia.  Shortly after the
family moves to Georgia, Susan is deployed overseas, leaving Jennifer in the
exclusive care of Carol.  

One morning, as Jennifer is getting dressed, she complains of severe pain on
the right side of her abdomen.  Susan takes her to an urgent care clinic, and the

62. See Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14,
2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Bourke v. Beshear, No. 3:13-CV-
750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968
(S.D. Ohio 2013); see also Linda S. Anderson, Protecting Parent-Child Relationships: Determining
Parental Rights of Same-Sex Parents Consistently Despite Varying Recognition of Their
Relationship, 5 PIERCE L. REV. 1, 17-18 (2006) (noting that both the marriage and parent-child
relationships of same-sex couples may be terminated when they cross state borders and detailing
the potential negative implications of this termination). 



18 INDIANA LAW REVIEW [Vol. 48:1

doctor recommends that Jennifer be admitted to the hospital to determine
whether the pain is caused by a ruptured appendix.  After a thorough examination
at the hospital, the doctor concludes that Jennifer’s appendix is inflamed.  She
explains that Jennifer’s parents need to authorize emergency surgery so that it
can be removed before it bursts.  Susan is unable to reach Carol to authorize the
surgery, and Susan is not Jennifer’s legal parent because their filial relationship
exists by virtue of a marriage Georgia considers void.  In contravention of
Jennifer’s best interests, a hospital official can disregard Susan’s legal parentage
and deny her the right to make a life-or-death medical decision for her daughter.63 

In California, Jennifer had two legal parents and she is entitled to all of the
benefits and protections that legal parentage affords, which would include a
relationship with both mothers sufficient to allow either of them to make
emergency medical decisions on her behalf.64  The invalidation of her filial
relationship with Susan and the resulting harms, authorized by Section 2, can
have catastrophic consequences.  The nullification of a legal parent-child
relationship compromises benefits and protections guaranteed to the child by the
Equal Protection and Due Process Clauses.

Where the child has no genetic relationship to a parent, parentage attendant
to marriage provides little protection against invalidation of their filial
relationship by non-recognition laws authorized by Section 2 of DOMA.65  In

63. See  Henry v. Himes, No. 1:14-CV-129, 2014 WL 1418395, at *17 (S.D. Ohio Apr. 14,
2014) (describing the adverse impact of Ohio’s non-recognition law on legal parentage thusly,
“Same-sex couples’ legal status as parents will be open to question, including in moments of crisis
when time and energy cannot be spared to overcome the extra hurdles Ohio’s discrimination
erects.”). 

64. In the absence of the marriage ban Section 2 authorizes, children’s filial relationship with
their non-biological parent is not vulnerable to invalidation.  See Wendy G-M v. Erin G-M, 2014
WL 1884485, at *11 (N.Y. Sup. Ct. May 7, 2014).  In that case the court was tasked with
determining whether a non-biological spouse married to the birth mother in a civil ceremony in
Connecticut is a parent pursuant to New York’s long standing presumption that both spouses are
the legal parents of any child born within an extant marriage.  Id.  Determining both spouses to be
the child’s legal parents, the court held, “Because the Marriage Equality Act has sanctioned
marriage in New York, this state no longer needs to afford comity to other jurisdictions on resolving
issues relating to parenthood in same-sex marriages.”  Id.  

65. In re Adoption of Sebastian, 879 N.Y.S.2d 677, 682-83 (2009).  The Court explained the
lesbian mothers’ desire, despite their marital status, to allow the biological mother to adopt their
child by stating:

[A]s the child of a married couple, Sebastian already has a recognized and protected
child/parent relationship with both Ingrid and Mona, arguably making adoption
unnecessary and impermissibly duplicative.  Unfortunately, while this is the case in New
York, the same recognition and protection of Mona’s parental rights does not currently
exist in the rest of this country, or in most other nations in the world.  For this reason,
the parties argue that only an order of adoption would ensure the portability of
Sebastian’s parentage, and further ensure that the federal government and other states
would recognize Mona as Sebastian’s legal parent.



2014] IN WINDSOR’S WAKE 19

light of this reality, same-sex couples employ a variety of legal devices to
establish and buttress the filial relationship between a child and her non-
biological parent.  These efforts are designed to insure against invalidation of the
legal parent-child relationship by non-recognition laws that void the couple’s
marriage.  These forms of legal parentage fall loosely into two categories: 
parentage by adoption and parentage by judgment.  The availability of these
“alternative” forms of legal parentage does not eliminate the harm caused by
Section 2, and their viability remains subject to non-recognition laws.  

Section 2 permits states to disregard “judicial proceeding[s] of any other
State . . . respecting a relationship between persons of the same sex that is treated
as a marriage under the laws of such other State . . . or a right or claim arising
from such relationship,” including legal parentage.66  Parentage created by
judgment, particularly those that rely upon the existence of a marital relationship
between same-sex partners, falls within the scope of the exclusion authorized by
Section 2.  Additionally, same-sex adoptions and second parent adoptions have
fallen prey to invalidation by marriage and adoption bans in non-recognition
states and can secure no guarantee of legal parentage in those jurisdictions.  

Alternative methods of creating the filial relationship may provide an added
measure of security, however, they cannot entirely insulate against the harm
caused by Section 2’s grant of authority to non-recognition states to disregard the
legal status of those relationships.67  As same-sex couples challenging
Tennessee’s non-recognition statute argue in Tanco:

[a]lthough . . . they can take additional steps to reduce some of these
uncertainties . . . these steps would be costly and time-consuming . . .
[and] they would result in only minimal legal protections relative to the
full panoply of rights that otherwise attach to state-sanctioned
marriage.68

The existence of “alternative” forms of legal parentage does not negate the
claim that the non-recognition laws Section 2 authorizes deprives children in
same-sex families of the most protected form of parentage—parentage incident
to an existing marriage.69  

C.  Second Parent and Joint Adoption
One popular method of constructing legal parentage between a child and a

Id. (citations omitted). 
66. Defense of Marriage Act § 2, 28 U.S.C. § 1738C (1996).  
67. Himes, 2014 WL 1418395, at *17.  
68. Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525, at *4 (M.D. Tenn. Mar. 14,

2014).  
69. Anderson, supra note 62, at 3 (noting that non-recognition laws result in situations where

“children of [same-sex] relationships are subject to fluctuating legal relationships based only on
geographical location.”). 



20 INDIANA LAW REVIEW [Vol. 48:1

non-biological parent is by adoption.70  Joint adoption involves a same-sex couple
adopting a child, with both parents enjoying constitutional rights and protections
identical to those biological parents possess, with respect to the child.71  Second-
parent adoption is the process by which the non-biological parent in a same-sex
family or the stepparent, in an opposite-sex family, adopts the child, thereby,
establishing a filial relationship.72  Some states require marriage as a prerequisite
for allowing a second-parent adoption.73  Some states allow an individual gay or
lesbian person to adopt a child, but prohibit gay and lesbian couples from
adopting.74  However, several states and counties within states prohibit second
parent adoption, making it challenging for non-biological parents in same-sex
marriages to establish a filial relationship with their child.75  Additionally, there
are non-recognition adoption statutes and constitutional amendments that void
same-sex adoptions created in other states.76 

Professor Rhonda Wasserman identifies three explanations non-recognition
states offer for refusing to recognize out-of-state adoptions by gays and
lesbians.77  First, states have the right to decline to recognize adoptions deemed

70. Rhonda Wasserman, Are You Still My Mother?:  Interstate Recognition of Adoption by
Gays and Lesbians, 58 AM. U. L. REV. 1, 41 (2009).  It is important to note that adoption is a
complicated and involved process, and couples who pursue this option do so at considerable cost. 
Id.  Adoption proceedings are generally lengthy and require an intrusive, and often expensive,
professional “ home study, “which investigates the intimate details of a couple’s relationship,
finances, family, and living environment.  Id.  The investigation may also entail fingerprinting and
a mandatory check for a criminal record as well as any prior reported child abuse or neglect.  Id. 
at 41-42.  

71. MOVEMENT ADVANCEMENT PROJECT ET AL., SECURING LEGAL TIES FOR CHILDREN LIVING
IN LGBT FAMILIES:  A STATE STRATEGY AND POLICY GUIDE 11 (2013) [hereinafter SECURING
LEGAL TIES], available at http://www.lgbtmap.org/file/securing-legal-ties.pdf.  

72. Deborah H. Wald, The Parentage Puzzle:  The Interplay between Genetics, Procreative
Intent, and Parental Conduct in Determining Legal Parentage, 15 AM. U. J. GENDER SOC. POL’Y
& L. 379, 397-408 (2007).  

73. See, e.g., MD. CODE ANN., FAM. LAW § 2-201 (2013); but see D.C. CODE §§ 16-302, 46-
401 (2001) .  

74. See OHIO REV. CODE ANN. § 3107.03 (West 2011); Henry v. Himes, No. 1:14-CV-129,
2014 WL 1418395, at *10 (S.D. Ohio Apr. 14, 2014) (noting that under Ohio law “opposite-sex
married couples can invoke step-parent adoption procedures or adopt children together, same-sex
married couples cannot.  Ohio courts allow an individual gay or lesbian person to adopt a child, but
not a same-sex couple.”); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 980 (S.D. Ohio 2013).
Even in the absence of explicit bans gay couples and individuals still suffer discrimination in the
placement context.  SECURING LEGAL TIES, supra note 71, at 11. 

75. See, e.g., Wheeler v. Wheeler, 642 S.E.2d 103, 104 (2007) (Carley. J., dissenting) (“There
is not any appellate opinion addressing same-sex adoptions in Georgia, even though they have been
permitted at the trial court level in certain counties . . . .”); see also SECURING LEGAL TIES, supra
note 71, at 14-15. 

76. Anderson, supra note 62, at 17-18. 
77. Wasserman, supra note 70, at 5. 



2014] IN WINDSOR’S WAKE 21

fundamentally inconsistent with their public policy.78  Second, the non-
adversarial nature of most adoption proceedings allows states to argue that
adoptions are not judicial determinations; rather, they are created by private
agreement between the adoptive and birth parents, and therefore they are not
entitled to recognition under the Full Faith and Credit Clause.79  Finally, she
notes, a state may characterize recognition of parental status as a matter of
enforcement and determine that its adoption and parentage laws, rather than those
of the issuing state, are controlling.80  A survey of recent case law highlights the
limited utility of adoption as a method of insuring the filial relationship between
a child and her non-biological parent against invalidation. 

Adar v. Smith, a Fifth Circuit case, involved an unmarried gay couple who
adopted a child born in Louisiana.81  A New York court issued a joint adoption
order and both men were designated the child’s legal parents.82  The parents
applied to the Louisiana State Registrar requesting that the child’s original birth
certificate be amended to include both of their names.83  Citing a Louisiana
statute prohibiting adoption by unmarried couples, the registrar refused the
parents’ request.84  In recognition of the adoption order, the registrar agreed to
add one of the men’s names to the birth certificate.85  The parents and the child
filed suit arguing that the adoption decree and the resulting filial relationships
between the child and both parents were entitled to recognition by Louisiana
under the Full Faith and Credit Clause.86  They also claimed that the actions of
the registrar violated their equal protection rights because they discriminated
against the child based upon the marital status of the parents.87 

The District Court granted the Plaintiffs’ motion for summary judgment,
without reaching their equal protection claim.88  A three-judge panel of the Fifth
Circuit Court of Appeals affirmed the lower court’s decision; however, that
ruling was set aside by a majority of the full 16-member court sitting en banc.89 
In an 11-5 decision the Fifth Circuit ruled that the Full Faith and Credit Clause
did not apply to the registrar’s decision and that Louisiana was not obliged to
recognize the law of a sister-state repugnant to its public policy against adoption
by unmarried couples.90  The court also rejected the parties’ equal protection
claim, reasoning that the state’s goal of ensuring that children are raised in stable,

78. Id. at 23-24.  But see cases cited supra note 52.
79. Wasserman, supra note 70, at 36-39. 
80. Id. at 72; see also Adar v. Smith, 639 F.3d 146, 160 (5th Cir. 2011).  
81. Adar, 639 F.3d at 149.  
82. Id. 
83. Id.  
84. Id. at 149-50.  
85. Id. at 150.  
86. Adar v. Smith, 639 F.3d 146, 151 ( 5th Cir. 2011).  
87. Id. at 161.  
88. Id. at 150.  
89. Id.  
90. Id. at 161.  



22 INDIANA LAW REVIEW [Vol. 48:1

married homes justified its adoption law and that goal was rationally related to
the registrar’s refusal to amend the birth certificate.91  While the Louisiana law
at issue in Adar did not prohibit same-sex marriage, it had the same adverse
effect that enforcement of state marriage bans authorized by Section 2, would
have on children’s rights and interests.  It renders second-parent and joint
adoptions vulnerable to invalidation in non-recognition states in violation of
children’s constitutional rights.92

The outcome in Boseman v. Jarrell93 also underscores the vulnerability of
filial relationships created by adoption.  In that case, a lesbian couple living
together in North Carolina as domestic partners made joint efforts to conceive a
child with the expressed intent of co-parenting him.94  The non-biological mother
assumed an equal share of the parenting responsibilities after their son’s birth.95 
To secure the legal status of her relationship with the child, both parties sought
an adoption order designating the non-biological mother as a legal parent without
terminating the legal parentage of the biological mother.96  Though North
Carolina law did not expressly authorize the kind of adoption sought by the
parties, an adoption court granted the parties’ request.97  Upon dissolution of their
relationship and on appeal to the North Carolina Supreme Court, the biological
mother obtained a judgment invalidating the filial relationship between the child
and her non-biological adoptive mother.98  At issue in that case was enforcement
of an existing adoption order within the state of its issuance, not enforcement of
an out-of-state order.99  Nevertheless, the court’s decision invalidating the order

91. Id. at 162.  
92. NAT’L CTR. FOR LESBIAN RIGHTS:  ADOPTION BY LBGT PARENTS 2 (2014), available at

http://www.nclrights.org/wp-content/uploads/2013/07/2PA_state_list.pdf.  For example, gay
adoption in Georgia is not prohibited by law and the status of second parent adoption in Georgia
is unclear.  Wheeler v. Wheeler, 642 S.E.2d 103, 104 (Ga. 2007) (Carley, J., dissenting) (cert.
denied) (“There is not any appellate opinion addressing same-sex adoptions in Georgia, even
though they have been permitted at the trial court level in certain counties . . . .”).  The uncertainty
that characterizes the treatment of second parent adoptions in Georgia raises questions about the
state’s willingness to recognize out-of-state, same-sex adoptions.  Parents can protect their families
by applying for legal guardianship, but guardianship “proceedings are burdensome and often lack
finality . . . .”  DeBoer v. Snyder, 973 F. Supp. 2d 757, 763 (E.D. Mich. 2014).  In addition, legal
guardianship does not provide the same rights as legal parentage.  Id. at 771 (the court observed that
under Michigan guardianship law:  “in the event that a state court were to award guardianship of
. . . surviving children to the non-legal parent, the guardianship would have to be renewed annually
and would remain susceptible to the challenge of an interested party at any time . . . plac[ing] such
children in a legally precarious situation”).

93. Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010).  
94. Id. at 497.  
95. Id.  
96. Id.  
97. Id. at 497-98.  
98. Id. at 502.  
99. See generally id. 



2014] IN WINDSOR’S WAKE 23

and extinguishing the non-biological mother’s status as the child’s legal parent
illustrates the limited ability of an adoption order to create legal parentage that
is not vulnerable to invalidation by non-recognition laws. 100 

The Tenth Circuit’s decision in Finstuen v. Crutcher101 reaches a different
conclusion regarding the constitutionality of state laws precluding recognition of
out-of-state, same-sex adoptions.  The court held:

[F]inal adoption orders by a state court of competent jurisdiction are
judgments that must be given full faith and credit under the Constitution
by every other state in the nation.  Because the Oklahoma statute at issue
categorically rejects a class of out-of-state adoption decrees, it violates
the Full Faith and Credit Clause.102

Similar holdings in Russell v. Bridgens103 and In re Adoption of Sebastian104
also inspire some optimism regarding the security of legal parent-child
relationships created via adoption by a gay or lesbian parent or couple in non-
recognition states.105  However, as the more recent holding in Adar suggests, the
protection adoption affords against invalidation of the filial relationship between
a child and her non-biological parent is far from absolute.106 

100. See id. at 502 (noting that the court is obligated to “recognize the statutory limitations on
the adoption decrees that may be entered” and, due to this, the adoption decree was void ab initio
and the non-biological mother is not a parent of the child).  

101. Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007).  
102. Id. at 1141.  
103. Russell v. Bridgens, 647 N.W.2d 56, 59 (Neb. 2002) (“A judgment rendered in a sister

state court which had jurisdiction is to be given full faith and credit and has the same validity and
effect in Nebraska as in the state rendering judgment.”).  

104. In re Adoption of Sebastian, 879 N.Y.S.2d 677, 692-93 (2009) (holding that:  “although
it is also true that an adoption should be unnecessary because Sebastian was born to parents whose
marriage is legally recognized in this state, the best interests of this child require a judgment that
will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United
States”). 

105. See also Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 962, 970 (Vt. 2006) (holding
DOMA does not require adherence to judgment from a non-recognition state (Virginia) where
biological mother took daughter to have former partner’s parental and visitation rights extinguished
reasoning that another state’s judgment will not be given greater weight than a pre-existing order
in the home state and the former partner is a parent of the child). 

106. Notwithstanding a valid adoption order, the filial relationship between a child and a non-
recognition parent may still have to be litigated to be acknowledged in a non-recognition state.  See,
e.g., Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *13 (S.D. Ohio Apr. 14, 2014)
(describing the discriminatory impact of Ohio’s non-recognition law the court observed:  “Under
Ohio law, if the [Plaintiffs’] marriages were accorded respect, both spouses in the couple would be
entitled to recognition as the parents of their expected children.  As a matter of statute, Ohio
respects the parental status of the non-biologically related parent whose spouse uses AI to conceive
a child born to the married couple . . . . However, Defendants refuse to recognize these Plaintiffs’
marriages and the parental presumptions that flow from them, and will refuse to issue birth



24 INDIANA LAW REVIEW [Vol. 48:1

These cases were decided before Windsor, which was preoccupied with the
constitutionality of Section 3 of DOMA and left the legality of Section 2 to be
determined in the future.107  Section 2 authorizes states to disregard any “right or
claim arising from” a same-sex marriage which includes legal parentage of a non-
biological parent in a same-sex marriage who obtains a second-parent
adoption.108  In some states second-parent adoption is permitted only when that
parent is married to the biological parent.109  If the marriage to the biological
parent is void, the second-parent adoption, which may exist by virtue of the
marriage, arguably, is also void.110  Accordingly, a child could be deprived of the
constitutional entitlements and protections inherent in a legal parent-child
relationship with her non-biological parent, notwithstanding the second-parent
adoption.

D.  Parenting Judgments
Parenting judgments provide another method of creating a filial relationship

based on an expanded definition of parentage beyond consanguinity, adoption,
and as appurtenant to marriage.111  These judgments are issued pursuant to state
parentage laws and judicial determinations that recognize parentage based upon
a variety of considerations including:  intent to parent, consent to the conception
of the child, conduct of the parent in relation to the child, and the child’s best
interests.112  Several states recognize that a non-biological and non-adoptive
parent can be a legal parent under specified circumstances.113  Some states have
enacted filiation laws that extend legal parentage to include a parent who has
lived with a child and held herself out as the child’s parent.114  Parentage statutes
in Delaware reflect an expanded definition of parentage and recognize a de facto
parent as a legal parent if she functions as a parent in the child’s life.115  

certificates identifying both women in these couples as parents of their expected children.”).
107. United States  v. Windsor, 133 S. Ct. 2675, 2682-83 (2013). 
108. See, e.g., MD. CODE ANN., FAM. LAW § 2-201 (2013); but see  D.C. CODE §§ 16-302

(1963), 46-401 (2010).  
109. Id.  
110. In re Adoption of Sebastian, 879 N.Y.S.2d 677, 683-84 (2009).
111. Meghan Anderson, K.M. v E.G.:  Blurring the Lines of Parentage in the Modern Courts,

75 U. CIN. L. REV. 275, 288-89 (2006); Nora Udell, A Riddle for Dr. Seuss “Are You My (Adoptive,
Biological, Gestational, Genetic, De Facto) Mother  (Father, Second Parent, or Stepparent)?” and
an Answer for our Times:  A Gender-Neutral, Intention-Based Standard for Determining
Parentage, 21 TUL. J.L. & SEXUALITY 147, 149 (2012) (“Diverse . . . laws among states make
allocating parental rights and obligations both overly complex and unjustly simple.”); Wald, supra
note 72, at 392-99.  

112. Anderson, supra note 111, at 278-95.  
113. Id. at 284-86.  
114. SECURING LEGAL TIES, supra note 71, at 19-20.  
115. DEL. CODE ANN. tit. 13, § 8-201 (2013); Smith v. Guest, 16 A.3d 920, 932 (Del. 2011);

see also Gilbert A. Holmes, The Tie That Binds:  The Constitutional Right of Children to Maintain



2014] IN WINDSOR’S WAKE 25

In other states, parentage may be established based on intent and expressions
of consent to parent a child.116  In those jurisdictions, a same-sex couple that
plans to conceive, bear, and raise a child together using new reproductive
technologies can petition the court to declare the non-biological parent to be a
legal parent to the child.117  Several state courts have held that a woman who
consents to her female partner’s insemination can be a legal parent,118 and a few
states have enacted statutes that explicitly recognize either a man or a woman
who consents to another woman’s insemination as a legal parent, without regard
to the couple’s marital status.119  Some states have adopted the most flexible
standard for establishing legal parentage and have determined a filial relationship
to exist based on factors that include the following:  acceptance of parenting
responsibilities, living with the child, action by the legal parent that fosters a
parent-child relationship between the child and her non-biological parent, and the
existence of a bonded parent-child relationship between the child and her non-
biological parent.120 

Parentage judgments should be entitled to full faith and credit by all states;
however, as the decision in Adar instructs, states may not be required to
recognize out-of-state parentage where recognition contravenes that state’s laws
or is repugnant to its public policy.121  This form of legal parentage is particularly
vulnerable to invalidation in non-recognition states that define parentage more
narrowly and without regard for parties’ intent, consent, or conduct.122 

Relationships With Parent-Like Individuals, 53 MD. L. REV. 358, 393-94 (1994) (providing a test
for establishing a principled limitation on the expansive definition of parent).

116. See, e.g., Elisa B. v. Superior Court, 117 P.3d 660, 670 (Cal. 2005).  In this case, the
California Supreme Court declared Elisa to be the presumed mother of the children her former
same-sex partner conceived through artificial insemination.  Id.  The court reasoned that she
actively participated in causing the conception of the children with the understanding that she and
her partner would raise them together, “she received the children into her home and openly held
them out as her natural children,” she voluntarily accepted the rights and obligations of parenting
the children after they were born, and there existed no competing claims to her being a second
parent.  Id.  

117. Anderson, supra note 111, at 284-85, 289-91; NAT’L CTR. FOR LESBIAN RIGHTS, LEGAL
RECOGNITION OF LBGT FAMILIES 4 (2014), available at http://www.nclrights.org/wp-content/
uploads/2013/07/Legal_Recognition_of_LGBT_Families.pdf. 

118. See, e.g., In re T.P.S., 978 N.E.2d 1070, 1079 (Ill. App. Ct. 2012); Shineovich v. Kemp,
214 P.3d 29, 40 (Or. Ct. App. 2009); In re Parentage of Robinson, 890 A.2d 1036, 1042 (N.J.
Super. Ct. Ch. Div. 2005). 

119. See, e.g., N.M. STAT. ANN. § 40-11A-703 (2010).  
120. See, e.g., D.C. CODE § 16-831.01 (2009); IND. CODE § 31-9-2-35.5 (2007); KY. REV.

STAT. ANN. § 403.270(1) (2004); S.C. CODE ANN. § 63-15-60 (2008). 
121. See supra note 51.   
122. See, e.g., MISS. CODE ANN. § 43-21-105(e) (2014); see also Wendy G-M v. Erin G-M,

2014 WL 1884485, at *11 (N.Y. Sup. Ct. May 7, 2014) (explaining that “a determination [of
parentage by equitable estoppel] by a trial court is fraught with complications, disputed facts which
could easily lead to expensive and contentious hearings and appeals.”). 



26 INDIANA LAW REVIEW [Vol. 48:1

Additionally, if the parentage judgment depends upon the marital status of the
couple under the parentage laws of the state where it is created, the filial
relationship is vulnerable to nullification because the prerequisite marital
relationship is void in a non-recognition state.

The specific language of Georgia’s non-recognition statute makes clear “the
courts of this state shall have no jurisdiction whatsoever under any circumstances
. . . to consider or rule on any of the parties’ respective rights arising as a result
of or in connection with such marriage.”123  This jurisdictional exclusion, which
is repeated in the state constitution, can be interpreted as expressly prohibiting
litigation of parenting judgments in Georgia courts.  If a hospital, school, or state
official declined to recognize legal parentage pursuant to such a judgment the
child is expressly prohibited from litigating that deprivation in Georgia courts.

State laws governing the construction, existence and enforcement of the filial
relationship have evolved to allow persons unrelated to a child to establish legal
parentage.  This expansion of the law affords greater protection to the legal status
of the relationship between parents and children in same-sex families in
recognition states.  However, these laws do not insure against invalidation of the
filial relationship, authorized by Section 2 in non-recognition states.  As a result,
their legal parent-child relationship and the benefits and protections inherent in
that relationship, are only secure in recognition states.  When the family moves
to a non-recognition state the parent and the child may be rendered legal
strangers.  

The availability of alternative forms of legal parentage does not eliminate,
though it may mitigate, the harm caused by Section 2 because those filial
relationships may not be accorded full faith and credit by other states.  Section
2 authorizes the enactment of non-recognition laws depriving a child of the most
secure guarantee of their filial relationship with their non-biological parent –
presumptive parentage incident to marriage.  It authorizes states, like Georgia, to
categorically nullify the filial relationship between a child and her non-biological
parent, to deprive the child of the benefits and protections of that relationship,
and to deny her the right to bring claims to enforce that relationship.  In this way,
Section 2 infringes children’s equal protection and substantive due process rights,
and it should be invalidated.

II.  STANDING:  CHILDREN HAVE SKIN IN THE GAME
For children’s claims against Section 2 of DOMA to be successful they must

satisfy standing requirements.  Plaintiffs are said to have constitutional standing
to bring actions in federal court where they meet the following three criteria: 
claimants must suffer an injury-in-fact, there must be a causal connection
between the alleged deprivation and the state action, and a favorable decision
must provide plaintiffs with actual relief.124  In light of the direct and adverse

123. GA. CODE ANN. § 19-3-3.1 (2013). 
124. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-64 (1992); Whitmore v.

Arkansas, 495 U.S. 149, 155 (1990); Los Angeles v. Lyons, 461 U.S. 95, 101-105 (1983); Opala



2014] IN WINDSOR’S WAKE 27

impact of Section 2’s grant of authority to states to create non-recognition laws,
children should satisfy standing requirements.  

Hollingsworth v. Perry125 was the first case heard during the 2012-2013 U.S.
Supreme Court term addressing same-sex marriage.  The case centered on the
constitutionality of California’s marriage ban, Proposition 8.126  Though the case
was ultimately decided without reaching the issue of Proposition 8’s legality,127
oral arguments in the case produced commentary by Justice Kennedy that support
an argument that Section 2 of DOMA inflicts an injury-in-fact on children in
families with same-sex parents.  At the Hollingsworth hearing, he described the
impact of California’s marriage ban on children in same-sex families as “an
immediate legal injury or . . . what could be a legal injury,” acknowledging the
existence of “40,000 children in California . . . that live with same-sex parents,
[who] want their parents to have full recognition and full status.”128  

Justice Kennedy’s acknowledgment of a potential legal injury to children
affected by marriage bans has no precedential value; however, it ascribes an
actionable injury to children whose same-sex families are not accorded full, legal
recognition.  Notably, Justice Kennedy’s remarks centered on the marital
relationship and the derivative harm children suffer due to the stigmatizing denial
of their same-sex parents’ marriage.  Arguably, Section 2’s impact on children
is more direct and adverse than the dignitary harm described by Justice Kennedy
because it authorizes states to enact laws that nullify existing parent-child
relationships.  Justice Kennedy’s characterization of the impact of same-sex
marriage bans as an immediate, legal injury, however, provides significant
support for the argument that children suffer an injury-in-fact by the non-
recognition laws Section 2 authorizes.    

Though Finstuen centers on a non-recognition adoption law, it is instructive
with respect to the injury-in-fact requirement.129  In that case, of the three same-
sex families seeking to enjoin enforcement of Oklahoma’s adoption law, only one
family was determined to have suffered an injury-in-fact.130  One plaintiff was a
gay couple residing in Washington with their child.131  The child was born in
Oklahoma and was jointly adopted by the couple.132  In an effort to honor their
promise to the surrogate mother to bring the child to Oklahoma for occasional
visits, they sought issuance of an Oklahoma birth certificate identifying both of

v. Watt, 454 F.3d 1154, 1157 (10th Cir. 2006).
125. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).  
126. Id. at 2659; see also CAL. CONST., Art. I, § 7.5.  
127. Hollingsworth, 133 S. Ct. at 2668 (holding the parties lacked standing to challenge this

provision).  
128. Transcript of Oral Argument at 21, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No.

12-144), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-
144.pdf. 

129. Finstuen v. Crutcher, 496 F.3d 1139, 1143-45 (10th Cir. 2007).  
130. Id. at 1144-45.  
131. Id. at 1142.  
132. Id.  



28 INDIANA LAW REVIEW [Vol. 48:1

them as parents.133  The court upheld the trial court’s dismissal of their claim for
lack of standing and explained: 

Ordinary travel generally does not require a state to examine the
legitimacy of an asserted parent-child relationship.  Although a medical
emergency might create a scenario in which parental consent is required,
such a situation is merely hypothetical, as opposed to an actual or
impending contact with Oklahoma authorities that could jeopardize the
rights of any member of the Hampel-Swaya family . . . .  [The] family’s
alleged injuries are simply too speculative to support Article III’s injury-
in-fact requirement for standing.134

The second same-sex family involved two children born to one of the
mothers in New Jersey who now reside in Oklahoma.135  The non-biological
mother obtained a second-parent adoption in New Jersey, which issued new birth
certificates for the children naming both women as their parents.136  The circuit
court overturned the district court’s determination that standing was satisfied
based on the non-biological mother’s fear that her filial relationship would be
invalidated by the Oklahoma adoption statute.137  The court explained:

Ms. Finstuen recites no encounter with any public or private official in
which her authority as a parent was questioned.  Most importantly, she
has not established that the amendment creates an actual, imminent
threat to her rights as a parent or the rights of her adopted children,
because she is not presently seeking to enforce any particular right
before Oklahoma authorities.  The Finstuen-Magro plaintiffs, therefore,
also fail to state a sufficient injury to confer standing under Article III
for this suit.138

133. Id.  Their request was initially granted and fulfilled, but an Oklahoma statute, passed one
month later, expressly refusing to recognize out-of-state, same-sex adoptions, invalidated the birth
certificate.  Id.; OKLA. STAT. tit. 10, § 7502-1.4(A) (effective 2004), (declared unconstitutional by
Finstuen, 496 F.3d at 1156).  The statute provided:

The courts of this state shall recognize a decree, judgment, or final order creating the
relationship of parent and child by adoption, issued by a court or other governmental
authority with appropriate jurisdiction in a foreign country or in another state or territory
of the United States. The rights and obligations of the parties as to matters within the
jurisdiction of this state shall be determined as though the decree, judgment, or final
order were issued by a court of this state. Except that, this state, any of its agencies, or
any court of this state shall not recognize an adoption by more than one individual of
the same sex from any other state or foreign jurisdiction.

Id. 
134. Finstuen, 496 F.3d at 1144.  
135. Id. at 1142.  
136. Id.  
137. Id. at 1144-45.  
138. Id. at 1145.  



2014] IN WINDSOR’S WAKE 29

The third same-sex family resided in Oklahoma with their adopted daughter
who was born in Oklahoma.139  One mother adopted the child in California,
where the couple resided, and received a supplemental birth certificate listing her
as the child’s mother.140  The other mother obtained a second-parent adoption six
months later.141  The couple’s request that the child’s birth certificate be amended
to include the second mother’s name was denied.142  Contrasting their claimed
injuries with those alleged by the other families, the court held they had standing
and ruled:

[T]he Doels have standing under Article III.  OSDH has refused to revise
E’s birth certificate to add Jennifer Doel’s name as a parent, and thus
both Jennifer and E state an injury-in-fact.  In addition, Jennifer and
Lucy Doel recount an encounter with medical emergency staff in which
they were told by both an ambulance crew and emergency room
personnel that only “the mother” could accompany E and thus initially
faced a barrier to being with their child in a medical emergency.  This
incident too constitutes a concrete, particularized injury. . . . 

. . . . 
Moreover, the Doels brought an equal protection claim claiming that
Jennifer and Lucy Doel were injured when they were told that only ‘the
mother’ could accompany child E in a medical emergency.  In equal
protection claims, ‘the injury is the imposition of the barrier itself.’. . .
It is clear that the adoption amendment is the codification of a general
policy not to recognize the parent-child relationship of same-sex parents,
and the Doels have stated that this policy caused their injury.  Thus, the
Doels have standing under Article III to claim that the Oklahoma
adoption amendment is unconstitutional and to request a revised birth
certificate for E naming Jennifer Doel as a parent.143

Finstuen makes clear that the injury-in-fact requirement demands more than
prospective, speculative, or hypothetical harm; however, in Tanco the court
explained:

[t]he state has taken the position that the plaintiffs’ fears, including those
of Dr. Tanco and Dr. Jesty with respect to the upcoming birth of their
baby and their rights in their home should one of them die, are
“speculative,” “conjectural,” and “hypothetical.”  But the court need not
wait, for instance, for Dr. Tanco to die in childbirth to conclude that she
and her spouse are suffering or will suffer irreparable injury from
enforcement of the Anti-Recognition Laws.144

139. Id. at 1142.  
140. Finstuen  v. Crutcher, 496 F.3d 1139, 1142 (10th Cir. 2007).  
141. Id.  
142. Id.  
143. Id. at 1145, 1147 (citation omitted).  
144. Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525, at *7 n.12 (M.D. Tenn. Mar.



30 INDIANA LAW REVIEW [Vol. 48:1

If to satisfy standing, a child must establish that she or her parent has had an
actual—as opposed to anticipated—encounter with a public official—who has
denied the existence of their filial relationship, she should be able to do so easily
when Section 2 authorizes the enactment of laws, like Georgia’s, that empower
officials to disregard an existing filial relationship and that foreclose the
litigation of claims and rights based on that relationship in its courts.145   

Returning to the example of Jennifer, Susan and Carol:  If the doctor at the
hospital in Georgia refuses to recognize Susan’s authority, as Jennifer’s mother,
to make the decision about the proposed necessary, emergency surgery, Jennifer
could assert a concrete, particularized harm.146  The harm at issue would be the

14, 2014).  The court granted the Plaintiffs’ request seeking a preliminary injunction preventing
enforcement of Tennessee’s non-recognition laws.  The court explained: 

[T]he evidence shows that the plaintiffs are suffering dignitary and practical harms that
cannot be resolved through monetary relief.  The state’s refusal to recognize the
plaintiffs’ marriages de-legitimizes their relationships, degrades them in their
interactions with the state, causes them to suffer public indignity, and invites public and
private discrimination and stigmatization. . . .

. . . . 

For Dr. Jesty and Dr. Tanco, and for Mr. Espejo and Mr. Mansell, there is also an
imminent risk of potential harm to their children during their developing years from the
stigmatization and denigration of their family relationship.  The circumstances of Dr.
Jesty and Dr. Tanco are particularly compelling: their baby is due any day, and any
complications or medical emergencies associated with the baby’s birth—particularly one
incapacitating Dr. Tanco—might require Dr. Jesty to make medical decisions for Dr.
Tanco or their child. Furthermore, if Dr. Jesty were to die, it appears that her child
would not be entitled to Social Security benefits as a surviving child.  Finally, Dr. Tanco
reasonably fears that Dr. Jesty will not be permitted to see the baby in the hospital if Dr.
Tanco is otherwise unable to give consent (citation omitted).  For all of these reasons,
the court finds that the plaintiffs have shown that they will suffer irreparable harm from
enforcement of the Anti-Recognition Laws.

Id. at *7; see also, e.g., De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014).  Plaintiff couple,
married in Massachusetts, contended that Texas’ non-recognition law negated the non-biological
parent’s filial relationship with their child and that she could not be considered a legal parent unless
she undertook “the long administrative and expensive process of adoption.”  Id. at 646.  The court
determined those “monetary damages [to] constitute a concrete, injury in fact suffered by Plaintiffs
due to Texas’ ban on same-sex marriage.”  Id. 

145. The plaintiffs in the federal lawsuit challenging Georgia’s non-recognition laws and
marriage ban are adults who claim the laws violate their equal protection and substantive due
process rights.  Though there is a child present in one of the families, he is not a named plaintiff. 
See supra note 56.   

146. This raises the question whether the imposition of the barrier (i.e., the existence Georgia’s
non-recognition law) would suffice to establish an injury-in-fact or whether Jennifer must actually



2014] IN WINDSOR’S WAKE 31

imposition of a barrier to the validity of Jennifer’s filial relationship and the
deprivation of the rights and protections inherent in the filial relationship,
specifically authorizing life-saving medical care.  Additionally, dismissal of a
claim seeking to litigate a parent-child relationship for lack of subject matter
jurisdiction, as prescribed by Georgia’s jurisdictional exclusion, should qualify
as an injury-in-fact.  Such a claim could arise in the context of a child custody or
visitation dispute.  Citing language from Windsor that references the demeaning
and humiliating message DOMA Section 3 delivered to same-sex couples and
children within same-sex families,147 courts entertaining suits challenging state
laws have also determined dignitary harm to be cognizable as an injury-in-fact.148

With respect to the second standing requirement, a causal connection
between the alleged deprivation and the state action, children in same-sex
families can argue that Section 2, like the non-recognition law at issue in
Finstuen, is a “codification of a general policy not to recognize the parent-child
relationship of same-sex parents.”149  Though the Oklahoma law addressed non-
recognition of out-of-state adoptions and not out-of-state marriages, as Section
2 does, the effect of the law is the same.  It authorizes the invalidation of the
child’s filial relationship with her non-biological parent, which the Finstuen
court described as the imposition of a barrier in violation of equal protection
entitlements.150  The injury inflicted, nullification of an existing parent-child
relationship, is a result of the authority Section 2 grants states to disregard out-of-
state, same-sex marriages, and the legal parentage incident to marriage.151  

To satisfy the third standing requirement, children need to establish that
invalidation of Section 2 would provide them with actual relief.152  To that end,
they can argue that abrogation of Section 2 would require states to recognize out-
of-state marriages and legal parentage incident to the marriage in a manner
consistent with the comity other out-of-state marriages generally enjoy.153 

experience physical harm (i.e., death or critical injury) before she is considered to satisfy that
standing criterion.    

147. United States v. Windsor, 133 S. Ct. 2675, 2694 (2013).  
148. See, e.g., Baskin v. Bogan, No. 1:14-CV-00355-RLY-TAB, 2014 WL 1568884, at *2

(S.D. Ind. Apr. 18, 2014) (finding, “the deprivation of the dignity of a state sanctioned marriage is
a cognizable injury under Article III” based upon its determination “that Windsor recognized and
remedied a dignitary injury.”).   

149. Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007).  
150. Id.  
151. See supra note 15.  
152. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-64 (1992).  
153. Indeed, this argument is consistent with the purpose for which Section 2 was enacted—to

permit states to disregard same-sex marriages and rights, claims, and relationships arising from
those marriages.  See Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1263 (N.D.
Okla. 2014) (describing the purpose of Section 2 of DOMA by observing, “According to the House
Report preceding DOMA’s passage, the primary purpose of Section 2 was to ‘protect the right of
the States to formulate their own public policy regarding legal recognition of same-sex unions, free
from any federal constitutional implications that might attend the recognition by one State of the



32 INDIANA LAW REVIEW [Vol. 48:1

Arguably, even if the Full Faith and Credit Clause required recognition of out-of-
state, same-sex marriages, its public policy exception would allow a state to
disregard sister-state laws that contravene its public policy against gay
marriage.154

If the public policy exception exists, and there are conflicting circuit court
decisions on this point,155 states could enact and enforce non-recognition laws,
notwithstanding Section 2.156  In that case, Section 2 is essentially inert, and
invalidating it would not provide children with relief, as standing requires.157 
However, given that there is meaningful support for the position that no public
policy exception to the Full Faith and Credit Clause exists,158 the invalidation of
Section 2 could require non-recognition states to give full faith and credit to out-
of-state, same-sex marriages and parentage incident thereto.159  In that case, it
would remove a barrier, and might serve to invalidate state marriage bans, which

right for homosexual couples to acquire marriage licenses.’” (citing H.R. REP. NO. 104-664 (1996),
reprinted in 1996 U.S.C.C.A.N. 2905, 2906).  

154. Id. (referencing the House Judiciary Committee Report on Section 2, the court explained
that the Committee “determined that states already possessed the ability to deny recognition of a
same-sex marriage license from another state, so long as the marriage violated a strong public policy
of the state having the most significant relationship to the spouses at the time of the marriage. 
However, the Committee also expressed its view that such conclusion ‘was far from certain’”).  

155. See supra note 51. 
156. See H.R. REP. NO. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906.  
157. Bishop, 962 F. Supp.2d at 1265-69.  The Bishop court addressed the operation of Section

2 as relevant to the causation prong of standing requirements.  It held, 
Section 2 is an entirely permissive  federal law.  It does not mandate that states take any
particular action, does not remove any discretion from states, does not confer benefits
upon non-recognizing states, and does not punish recognizing states . . . . Section 2 does
not have any coercive or determinative effect on Oklahoma’s non-recognition of the [
] couple’s California marriage.  At a maximum, it removes a potential impediment to
Oklahoma’s ability to refuse recognition—namely, the Full Faith and Credit Clause.

Id. at 1266 (citations omitted).
158. See Adar v. Smith, 639 F.3d 146, 179 (2011) (noting that there is “no roving public

policy exception to the full faith and credit that is owed to out-of-state judgments”); Larry Kramer,
Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE
L.J. 1965, 1971-76 (1997); but see Grossman, supra note 47, at 463-67; L. Lynn Hogue, State
Common-Law Choice-of-Law Doctrine and Same-Sex “Marriage”:  How Will States Enforce the
Public Policy Exception?, 32 CREIGHTON L. REV. 29, 43-44 (1998). 

159. H.R. REP. NO. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2929 (referencing
the potential necessity of Section 2, the report provides, “While the Committee does not believe that
the Full Faith and Credit Clause, properly interpreted and applied, would require sister States to
give legal effect to same-sex marriages celebrated in other States, there is sufficient uncertainty that
we believe congressional action is appropriate.”); see also Smelt v. Cnty. of Orange, 447 F.3d 673,
683 (9th Cir. 2006); Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 378 (D. Mass. 2010);
Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468, 1532
(2007).  



2014] IN WINDSOR’S WAKE 33

would eliminate the injury suffered by children deprived of their filial
relationships with their non-biological parent.  Their filial relationships would
no longer be vulnerable to nullification, and they would enjoy all of the benefits,
protections, security, permanency, and stability that the legal parent-child
relationship affords.  Having addressed the issue of children’s standing to
challenge Section 2, this Article now turns to an examination of the best interests
of the child standard, which informs the existence, scope, and substance of
children’s constitutional rights infringed by Section 2.

III.  THE PRIMACY OF LEGAL PARENTAGE UNDER THE BEST INTERESTS
OF THE CHILD STANDARD

The best interests of the child standard emerged as the polestar consideration
for custodial determinations in late nineteenth and early twentieth century
jurisprudence.160  The rationale behind the application of the standard, which
affords courts wide discretion to consider factors that inform a child’s physical,
psychological, social, and emotional well-being, is that the court, acting as
parens patriae, will do what is best for the child.161  This determination is fact-
specific and should be done on a case-by-case basis with an eye toward ensuring
the child’s sustained growth, development and well-being, as well as security,
continuity, and stability in her environment.162  The best interests of the child
standard is controlling in custody,163 visitation,164 and adoption determinations.165 

160. Chapsky v. Wood, 26 Kan. 650, 654 (Kan. 1881) (“Above all things, the paramount
consideration is, what will promote the welfare of the child?”); Finlay v. Finlay, 148 N.E. 624, 626
(N.Y. 1925). 

161. Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting) (noting “that a
parent’s interests in a child must be balanced against the State’s long-recognized interests as parens
patriae, and, critically, the child’s own complementary interest in preserving relationships that serve
her welfare and protection”); Santosky v. Kramer, 455 U.S. 745, 766 (1982).  

162. Watts v. Watts, 854 So. 2d 11, 13 (Miss. Ct. App. 2003).  The Court stated:
The factors used to determine what is in the “ best interests “of a child with regard to
custody are:  (1) age, health, and sex of the child; (2) determination of the parent that
had the continuity of care prior to the separation; (3) which parent has best parenting
skills and . . . other factors relevant to the parent-child relationship.

Id. (citations omitted). 
163. Barney v. Barney, 301 A.D.2d 950, 951 (N.Y. 2003).  The Court made clear that:

The paramount consideration in determining custody is the best interests of the child. 
This crucial consideration is not tied to a routine analysis but, recognizing the
uniqueness of each case, looks to the totality of the circumstances, including factors
such as the child’s age, the quality of each parent’s home environment, the parents’
relative fitness, the ability of each parent to provide for the intellectual and emotional
development of the child, and the effect of the custody award on the child’s relationship
with the noncustodial parent.

Id. (citations omitted). 
164. Fine v. Fine, 626 N.W.2d 526, 532 (Neb. 2001) (noting that the best interest of the child



34 INDIANA LAW REVIEW [Vol. 48:1

In the custody context, the standard is used to assess the comparative
competencies of parents competing for custody of a child.166  In other contexts,
such as adoption, the standard is applied to each parent seeking to adopt, and the
court engages in a fact-specific inquiry into a child’s needs and corresponding
parental abilities.167  In all contexts, the standard focuses on the relationship
between the child and parent, or prospective parent, and it contemplates whether
a child’s emotional, intellectual, social, and physical well-being is served by that
relationship.168  The legal parent-child relationship is presumed to serve the
child’s best interests.169

The application of the best interests standard in the visitation context is
particularly instructive in analyzing a child’s right to a legal filial relationship.170 
The generalized assumption that a child benefits from a continued relationship
with both divorcing parents is subject to a determination that the relationship
with each parent serves the child’s best interests, absent a determination that a
parent is unfit.171  While the noncustodial parent may be determined to be
comparatively less competent to provide for a child’s best interests, visitation is
underwritten by an acknowledgment that a child’s estrangement from the non-
custodial parent is adverse to her well-being.172  Not only is visitation with the
non-custodial parent regarded as beneficial to a child, courts have recognized that
children have an independent right to visitation with their non-custodial parent.173 
A child and her parent can only be deprived of this right where there is evidence
that visitation is inimical to the child’s physical or emotional needs.174  Similarly

standard serves as the “primary and paramount” consideration in decisions regarding visitation with
a child).  

165. Fla. Dep’t of Children & Families v. Adoption of X.X.G. & N.R.G., 45 So. 3d 79 (Fla.
App. 3 Dist. 2010); Dupre v. Dupre, 857 A.2d 242, 251-52 (R.I. 2004).

166. In re Custody of Walters, 529 N.E.2d 308, 310-11 (Ill. App. 3d 1988).  
167. See cases cited supra note 165.    
168. Dupre, 857 A.2d at 251-52 (“Few principles are more firmly established in the law,

however, than that in awarding custody, placement, and visitation rights, the ‘paramount
consideration’ is the best interests of the child.”) (citation omitted).  

169. Parham v. J.R., 442 U.S. 584, 602-03 (1979) (emphasizing that “parents generally do act
in the child’s best interests”); see also Troxel v. Granville, 530 U.S. 57, 68-69 (2000).  

170. See  In re  Marriage of Kiister, 777 P.2d 272 (Kan. 1989); Keen v. Keen, 629 N.E.2d 938
(Ind. Ct. App. 1994); DenHeeten v. DenHeeten, 413 N.W.2d 739 (Mich. Ct. App. 1989).  

171. See generally Katharine T. Bartlett, U.S. Custody Law and Trends in the Context of the
ALI Principles of the Law of Family Dissolution, 10 VA. J. SOC. POL’Y & L. 5 (2002); Rachel M.
Colancecco, A Flexible Solution to a Knotty Problem:  The Best Interests of the Child Standard in
Relocation Disputes, 1 DREXEL L. REV. 573 (2009).   

172. Negaard v. Negaard, 642 N.W.2d 916, 920-21 (N.D. 2002).  
173. Camacho v. Camacho, 218 Cal. Rptr. 810, 220 (Ct. App. 1985) (noting that “visitation

by the natural parent is as much a right of the child as it is of the parent”); Berg v. Berg, 642
N.W.2d 899, 903 (N.D. 2002); Johnson v. Schlotman, 502 N.W.2d 831, 835 (N.D. 1993) (noting
that visitation is both presumed to be in the child’s best interest and a right of the child).  

174. See  Woods v. Woods, 498 N.E.2d 906, 908 (Ill. App. Ct. 1986) (stating that visitation



2014] IN WINDSOR’S WAKE 35

children in same-sex families should not be deprived of their filial relationship
with their non-biological parent when they move to a non-recognition state,
unless the presumption that estrangement would be harmful to their interests is
rebutted with credible evidence, or the determination is made subject to a fact-
specific, individualized examination of the parent-child relationship.  The
categorical invalidation of legal parentage authorized by Section 2 dispenses with
the required examination.175

The best interests of the child standard is a category of considerations
relevant to a child’s well-being, which should enjoy constitutional protection. 
In Palmore v. Sidoti, the U.S. Supreme Court described the best interests of the
child as “indisputably a substantial governmental interest for purposes of the
Equal Protection Clause.”176  Many courts invalidating marriage bans have
acknowledged the child’s best interests as a compelling or legitimate state
interest.177  If children’s interests rank as such, those same interests should enjoy
constitutional protection against government infringement.

The substance of the best interests standard has evolved from being measured
almost exclusively in terms of parental conduct,178 to being focused on the
benefits and protections a child derives from her legal relationship with her
parent.  As one judge observed, while questioning the constitutionality of
depriving children of the opportunity to have de facto parents recognized as legal
parents,  

[a law] that would deny children . . . the opportunity of having their two
de facto parents become their legal parents, based solely on their
biological mother’s sexual orientation or marital status, would not only
be unjust under the circumstances, but also might raise constitutional
concerns in light of . . . the best interests of the child.179

Children’s rights and interests are presumptively served and secured by the
legal parent-child relationship.180  Undergirding this presumption is an implicit
acknowledgment of the filial relationship as quintessential to a child’s protection

may only be restricted where there is evidence that the child’s physical, mental, moral, or emotional
health would be endangered); Hendrickson v. Hendrickson, 603 N.W.2d 896, 902-03 (N.D. 2000)
(“Denying a non-custodial parent visitation with a child is ‘an onerous restriction,’ such that ‘
physical or emotional harm resulting from the visitation must be demonstrated in detail’ before it
is imposed.”) (citation omitted); Percle v. Noll, 634 So. 2d 498, 502 (La. Ct. App. 1994); Maxwell
v. LeBlanc, 434 So. 2d 375, 379-80 (La. 1983).  

175. See supra note 31. 
176. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).  
177. See infra note 323.   
178. See Santosky v. Kramer, 455 U.S. 745, 766 (1982); Finlay v. Finlay, 148 N.E. 624, 626

(N.Y. 1925); Chapsky v. Wood, 26 Kan. 650, 654 (Kan. 1881) (“Above all things, the paramount
consideration is, what will promote the welfare of the child?”).  

179. In re Jacob, 660 N.E.2d 397, 405 (N.Y. 1995) (citation omitted) .  
180. Parham v. J.R. 442 U.S. 584, 602 (1979) (noting that, “historically it has [been]

recognized that natural bonds of affection lead parents to act in the best interests of their children”).



36 INDIANA LAW REVIEW [Vol. 48:1

and care.  In addition to the material benefits and protections children derive
from the filial relationship,181 there are also emotional, social, and mental benefits
that derive from the permanency, constancy, and stability that the legal parent-
child relationship provides.182  Courts have consistently acknowledged these
entitlements, which are inherent in the filial relationship, as serving children’s
best interests in a variety of contexts, including:  custody disputes where courts
reference the benefits of maintaining a relationship with both parents;183 in
federal permanency statutes and cases that acknowledge the primacy of
permanent placement over extended foster or institutional care;184 and in tort
law.185  By depriving children of the tangible and intangible benefits inherent in
the filial relationship in contravention of their best interests, their equal
protection and due process rights become casualties of the laws Section 2
authorizes.  

A.  Moving Children’s Interests from Rhetoric to Rights
In Planned Parenthood of Central Missouri v. Danforth,186 the U.S. Supreme

Court expressly acknowledged the existence of children’s constitutional rights,
explaining, “[c]onstitutional rights do not mature and come into being magically
only when one attains the state-defined age of majority.  Minors, as well as
adults, are protected by the Constitution and possess constitutional rights.”187 
However, the scope and substance of those rights are not clearly defined, and are
often obscured by parental rights.  In his dissenting opinion in Troxel v.

181. United States v. Windsor, 133 S. Ct. 2675, 2694-96 (2013).  
182. Woodhouse, “Out of Children’s Needs, Children’s Rights,” supra note 29, at 327-30. 
183. See, e.g., Mason v. Coleman, 850 N.E.2d 513, 515 (Mass. 2006) (finding no abuse of

discretion in lower court’s refusal to authorize mother’s removal of the children to a different state
reasoning that protection of the children’s relationships with both parents is in the best interest of
the child).  

184. Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 811 (11th Cir.
2004); Encouraging Adoption:  Hearing Before the Subcomm. on Human Res. of the Comm. on
Ways and Means, 105th Cong. 112 (1997) (“Permanency has a variety of connotations including
the notion of stability with respect to the home where a child lives and his or her relationship to
their caregivers. In the strictest sense, however, permanency refers to that place where the legal
relationship between a child and the caregiver is most secure.”).  

185. For example, in wrongful death cases, bystander recovery cases, and loss of consortium
claims, children may be allowed to recover based on the psychological and emotional harm
experienced as a result of the loss of a parent and the loss of the benefits and protections derived
from that relationship.  See, e.g., Los Angeles v. Lyons, 461 U.S. 95, 101 (1983); Weber v. Aetna
Cas. & Sur. Co., 406 U.S. 164, 175-76 (1972); Levy v. Louisiana, 391 U.S. 68 (1968).  

186. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976).  
187. Id. at 74; see also Bellotti v. Baird, 443 U.S. 622, 634-35 (1979) (citing several areas of

law where the U.S. Supreme Court has recognized and protected the interests of children against
unconstitutional government action).  



2014] IN WINDSOR’S WAKE 37

Granville,188 Justice Stevens referenced the indeterminate nature of children’s
constitutional rights in the familial context and observed:

While this Court has not yet had occasion to elucidate the nature of a
child’s liberty interests in preserving established familial or family-like
bonds, it seems to me extremely likely that, to the extent parents and
families have fundamental liberty interests in preserving such intimate
relationships, so, too, do children have these interests, and so, too, must
their interests be balanced in the equation.  At a minimum, our prior
cases recogniz[e] that children are, generally speaking, constitutionally
protected actors . . . .”189

In Troxel, the Court decided an appeal from a state court’s grant of visitation
to a child’s grandmother over the objection of the custodial parent.190  The Court
determined the statute authorizing the visitation order infringed fundamental
parental rights and was not justified even if visitation would serve the child’s
best interests.191  The majority opinion in Troxel does not acknowledge the child
as a constitutional stakeholder or consider the best interests standard to create a
set of enforceable and protected rights that the child can assert.  As Justice
Stevens notes in his dissent, “Cases like this do not present a bipolar struggle
between the parents and the State over who has final authority to determine what
is in a child’s best interests.  There is at minimum a third individual, whose
interests are implicated in every case . . . the child.”192  

Justice Stevens’s suggestion that children’s rights within the family and
rights to relationships with family members exist and enjoy constitutional
protection is raised, though not resolved, by the Court in Michael H v. Gerald
D.193  In this case, the Court expressly declined to determine whether a child has
a substantive due process right to her relationship with her natural father.194 
Justice Scalia, writing for the majority, described the issue as one of first
impression and explained, “We have never had occasion to decide whether a
child has a liberty interest, symmetrical with that of her parent, in maintaining
her filial relationship.  We need not do so here . . . .”195

188. Troxel v. Granville, 530 U.S. 57 (2000).  
189. Id. at 88-89 (Stevens, J., dissenting) (citation omitted) (emphasis added).  The claim

advanced in this Article seizes upon a characterization of the best interest of the child standard as
a vehicle for the expression of children’s enforceable constitutional rights to the benefits inherent
in the filial relationship.  

190. Id. at 61-63.  
191. Id. at 72-73.  
192. Id. at 86 (Stevens, J., dissenting).  
193. Michael H. v. Gerald D., 491 U.S. 110, 130-32 (1989).  
194. Id. at 130.  The Court framed the issue in terms of whether Victoria could have a

relationship with both her natural father, with whom the evidence established she had a healthy
relationship, and her stepfather.  The Court’s framing of the issue (i.e., whether a child can have two
fathers) allowed it to more easily justify its decision.  

195. Id.  David Meyer makes an interesting observation about the seemingly contradictory



38 INDIANA LAW REVIEW [Vol. 48:1

At the heart of Michael H. was Victoria, who was born into the marriage of
Carole and Gerald, but was the result of an adulterous affair between Carole and
Michael.196  Michael acknowledged Victoria as his daughter, a blood test
confirmed their biological relationship,197 and during the first three years of
Victoria’s life she enjoyed a parent-child relationship with her biological father
and with her mother’s husband.198  Michael filed a filial action in California state
court to establish paternity and visitation rights.199  On appeal from the lower
court’s decision denying him paternity, he argued that he had a constitutionally
protected liberty interest in his parental relationship with Victoria, and that the
termination of that relationship violated his substantive due process rights.200 
Victoria asserted a complementary constitutional claim to her filial relationship
with Michael.201  The Court framed the central issue in the case as whether
tradition accords constitutional protection to the family unit and relationships
that are formed within the “unitary family,” rather than whether constitutional
protection should encompass the individual rights of natural parents and natural
children to a legal filial relationship with one another.202  Scalia’s skillful
subversion of children’s rights begins by conditioning the natural father’s
substantive, constitutional right to a continued relationship with his child upon
his marital status vis-a-vis the child’s mother.203  He then framed Victoria’s claim
as asserting “a due process claim to maintain filial relationships with both
Michael and Gerald,” and rejected her claim reasoning, “whatever the merits of
the guardian ad litem’s belief that such an arrangement can be of great
psychological benefit to a child, the claim that a State must recognize multiple
fatherhood has no support in the history or traditions of this country.”204  The
Court upheld the termination of Michael’s filial relationship with Victoria,
because it would intrude upon the filial relationship between Victoria and her
mother’s husband.205  The Court’s holding in Michael H. reveals the preservation

positions Justice Scalia takes in Troxel and Michael H observing, “In Troxel v. Granville . . . two
Justices [Stevens and Scalia] suggested that future claims of parental prerogative over child
visitation would need to be balanced against the competing privacy rights of children themselves.”
David Meyer, The Modest Promise of Children’s Relationship Rights, 11 WM. & MARY BILL RTS.
J. 1117, 1119 (2003).  

196. Michael H., 491 U.S. at 113.  
197. Id. at 114 (noting that blood tests of Michael, Carol, and Victoria established a 98.07%

probability that Victoria was Michael’s child).  
198. Id.  
199. Id. at 115.  
200. Id, at 115-16.  
201. Id. at 116.  
202. Michael H., 491 U.S. at 124.  
203. Id. at 130-31.  
204. Id.  
205. Id. at 130.  Justice Scalia explains the tension inherent in the balance of protecting

parental rights and preserving marriage: 
In Lehr v. Robinson . . . we observed that “[t]he significance of the biological



2014] IN WINDSOR’S WAKE 39

of the marital ideal to be the thumb on the scale that prioritizes marriage, even
one marked by infidelity, over an existing parent-child relationship.  The Court
has yet to clearly define the scope and substance of children’s rights to legal
parentage206 that would animate the proposed challenge to Section 2 as
authorizing states to nullify existing, filial relationships, in contravention of
children’s best interests.  Troxel and Michael H. both involve the balancing of
parental, third-party, children’s and state interests and rights in the domestic
context.  In Troxel, the child’s rights were not at issue and the Court’s analysis,
as Justice Stevens observed, centered on the conflict between parental rights and
third-party rights to the child.207  In Michael H., even though the child was at the
center of the controversy, the Court declined to determine her right to a
relationship with her natural father, and the Court’s holding was predicated upon
the primacy of the marital relationship.208  The Court fails to recognize the child
as a constitutional stakeholder in both cases.  However, neither decision
encumbers the claim that the best interests of the child secures a child’s right to
an existing filial relationship.  Negating that relationship and its benefits and
preventing the child from raising claims and rights related to it infringes her
constitutional rights.

B.  Children’s Rights vs. Parental Rights:  A Zero Sum Game?
One argument against recognizing children’s right to a filial relationship is

connection is that it offers the natural father an opportunity that no other male possesses
to develop a relationship with his offspring,” and we assumed that the Constitution
might require some protection of that opportunity.  Where, however, the child is born
into an extant marital family, the natural father’s unique opportunity conflicts with the
similarly unique opportunity of the husband of the marriage; and it is not
unconstitutional for the State to give categorical preference to the latter.  In Lehr we
quoted approvingly from Justice Stewart’s dissent in Caban v. Mohammed, to the effect
that although “[i]n some circumstances the actual relationship between father and child
may suffice to create in the unwed father parental interests comparable to those of the
married father,” “the absence of a legal tie with the mother may in such circumstances
appropriately place a limit on whatever substantive constitutional claims might
otherwise exist.” . . . Here, to provide protection to an adulterous natural father is to
deny protection to a marital father, and vice versa.

Id. at 128-30 (citations omitted). 
206. See Bellotti v. Baird, 443 U.S. 622 (1962).  This case offers some guidance as to the

privacy and liberty interests of children in the familial context.  In Bellotti, the Court analyzed the
constitutionality of a Massachusetts statute restricting the access of minors to abortion procedures
by the imposition of parental notice and consent requirements.  Id. at 625-26.  The Court’s analysis
begins with an acknowledgement of children’s constitutional rights and emphasizes the importance
of the parent-child relationship as contributing to the child’s well-being and as an integral aspect
of an optimal familial environment.  Id. at 633-39.  

207. See Troxel v. Granville, 530 U.S. 57 (2000).  
208. See Michael H. v. Gerald D., 491 U.S. 110 (1989).  



40 INDIANA LAW REVIEW [Vol. 48:1

that it would diminish the scope and substance of parental rights.  As children’s
rights scholar and law professor Martha Fineman has observed, “[s]ecured within
the private family, the dependent child becomes the primary responsibility of the
parent.  This conceptualization renders most considerations of the child
independent of the family (parent) inappropriate because they are potentially
adversarial.”209  Many fear that the enlargement of children’s rights will
circumscribe parental authority over their children.210  Observing the

209. Martha Albertson Fineman, Taking Children’s Interests Seriously, in WHAT IS RIGHT FOR
CHILDREN:  THE COMPETING PARADIGMS OF RELIGION AND HUMAN RIGHTS 229 ( Martha Alberston
Fineman & Karen Worthington eds., 2009).  On this point Professor Fineman observes further, “As
with many . . . decisions affecting children and families, the rights and responsibilities of parents
and the state  must be components of any consideration of what is appropriate for children. . . .
Perhaps it is evidence of our inability to rise above binary thinking . . . . The independent interests
of the child, if recognized at all, are submerged as we slip into a consideration of the competing
claims of authority over children made on behalf of parent and the state.”  Id.  

210. This argument is also credited by some as a principal reason for the United States’
reluctance to ratify the United Nations Convention on the Rights of the Child.  See Susan
Kilbourne, Opposition to U.S. Ratification of the United Nations Convention on the Rights of the
Child: Responses to Parental Rights Arguments, 4 LOY. POVERTY L.J. 55, 56 (1998) (stating:  “The
argument that the Convention on the Rights of the Child will undermine or even negate parental
rights and responsibilities is probably the most effective political weapon in the Convention
opponents’ arsenal. . . .  These predictions cut to the core of our fierce, American-style
independence, offend our sense of justice, individuality, and privacy, and seem to fly in the face of
Supreme Court rulings holding parental rights to be protected by the Constitution.”).  The U.N.
Convention on the Rights of the Child has been adopted by the U.N. General Assembly and has
been ratified by every nation except Somalia and the United States.  Id. at 57 n.8.  On February 23,
1995, the United States became the 177th nation to sign the Convention, but it has not been
considered by the Senate for ratification.  Id. at 55-56.  Historically it represents the most widely
ratified human rights treaty.  Id. at 57-59.  It is also the first International document to
comprehensively address children’s civil, political, economic, social, and cultural rights.  Id.   It
reflects the general principles espoused in two previously established non-binding declarations, the
Geneva Declaration of the Rights of the Child (1924) and the United Nation Declaration of the
Rights of the Child.  Id.  Critics of the Convention argue that in addition to interfering with state
law, it would interfere with parental rights.  Lainie Rutkow & Joshua T. Lozaman, Suffer the
Children?:  A Call for the United States Ratification of the United Nations Convention on the
Rights of the Child, 19 HARV. HUM. RTS. J. 161, 165 (2006).  State and local jurisdictions would
be most impacted by the Convention because most of the Convention articles concern matters
traditionally relegated to state rule.  While some reservations to the terms of the Convention can
be made, Article 51(2) limits the establishment of exceptions to those that do not contravene its
central purpose.  Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3, at art.
51 [hereinafter Convention].  It provides, “A reservation incompatible with the object and purpose
of the present Convention shall not be permitted.”  Id. Proponents of the Convention contend that
ratification would help define the best interest standard and increase enforcement of children’s
rights.  Kilbourne, supra note 210, at 61.  It could also result in the prioritization of children’s
rights over parental and governmental authority even when the latter two categories of power are



2014] IN WINDSOR’S WAKE 41

entrenchment of parental rights, one commentator explained:
[T]he tradition of legal protection of parental rights has deep historical
roots.  Before the twentieth century, the combined status of biological
parenthood and marriage signified a legal authority of almost limitless
scope. . . . Parental rights were understood to be grounded in natural
law and were not dependent on behavior that promoted the child’s
interest. . . . In the 1920s, the United States Supreme Court elevated
parental rights to constitutional stature, restricting the extent to which
the state can override parental authority.211

The right of the natural parent to raise her own child is considered
fundamental and the right enjoys significant protection by the federal and many
state constitutions.212  The U.S. Supreme Court first recognized the constitutional
character of parental rights in relation to their children in Pierce v. Society of
Sisters213 and Meyer v. Nebraska.214  Although these early cases focused on
parental rights, they implicitly raised questions about the existence, scope, and
substance of rights held by the children over whom adults exercised authority.215 
Eventually, the Court expressly recognized children’s rights as constitutional in
Prince v. Commonwealth of Massachusetts,216 although as in the cases that
preceded it, parental rights enjoyed primacy.217  These cases made it difficult for
children to present their rights as independent from parental rights and as
enforceable against infringement by parents and the State.  

Ten years after Prince, children’s rights finally began to emerge from the

asserted on behalf of the child.  Id.  Article 3 of the Convention provides, “In all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration.”  Convention, supra note 210, at art. 3.  Article 7 provides, “The child . . . shall have
. . . as far as possible, the right to know and be cared for by his or her parents.”  Id. at 7.  For a
thorough examination of the implications of U.S. ratification of the Convention, see generally
JONATHAN TODRESS ET AL., THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD:  AN
ANALYSIS OF TREATY PROVISIONS AND IMPLICATIONS OF U.S. RATIFICATION (2006). 

211. Elizabeth Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401, 2407-08
(1995) (emphasis added). 

212. Santosky v. Kramer, 455 U.S. 745, 769 (1982).  
213. Pierce v. Society of Sisters, 268 U.S. 510 (1925 ).  
214. Meyer v. Nebraska, 262 U.S. 390 (1923).   
215. But see Barbara Bennett Woodhouse, “Who Owns the Child:”  Meyer and Pierce and

the Child as Property, 33 WM. & MARY L. REV. 995, 998 (1992) (“Meyer and Pierce
constitutionalized a narrow, tradition-bound vision of the child as essentially private property.”).

216. Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 164 (1944).  The Court
explained the relationship between the parental and children’s rights at issue stating, “[T]wo
claimed liberties are at stake.  One is the parent’s to bring up the child in the way he should go,
which for appellant means to teach him the tenets and the practices of their faith.  The other
freedom is the child’s, to observe these . . . .”  Id. 

217. Id.  



42 INDIANA LAW REVIEW [Vol. 48:1

preponderant shadow of parental interests and ground independent constitutional
challenges in Brown v. Board of Education218 and later in In re Gault.219  In
Brown the plaintiffs were children who, through their legal representatives,
challenged the constitutionality of the doctrine of separate-but-equal based on
impairment of their right to an equitable educational experience.220  The
challenge was not framed in terms of parental rights – the right of parents to
provide an equal educational opportunity for their children or the right of parents
to have their tax dollars used to provide equal educational opportunities for their
children without regard to their race.  Instead, the claim centered on the direct
harm de jure discrimination in the education context caused Black children.221 
A unanimous Court trumpeted, “[S]egregation of children in public schools
solely on the basis of race . . . deprive[s] the children of the minority group of
equal educational opportunities”222 in vindication of children’s rights.  The
decision, heralded for its significance in the struggle for civil rights, also
represents a high water mark for children’s rights jurisprudence.223  

The Court’s unequivocal acknowledgment of children as possessing
enforceable constitutional rights against harmful State action in Brown224 was
echoed in the Court’s decision four years later in Cooper v. Aaron.225 
Responding to Arkansas’ reticence to integrate its public schools, the Court
stated, “[L]aw and order are not here to be preserved by depriving the Negro
children of their constitutional rights.”226  The Court’s acknowledgment of
children’s constitutional rights expanded beyond equal protection entitlements
to encompass due process protections as well, in one of its most celebrated
juvenile law decisions, In re Gault.227  In that opinion the U.S. Supreme Court
addressed whether juveniles accused of crimes in delinquency proceedings are
entitled to procedural due process protections comparable to those enjoyed by
adults.228  The Court declared, “[N]either the Fourteenth Amendment nor the Bill
of Rights is for adults alone”229 and held that juveniles facing an adjudication of
delinquency and incarceration are entitled to certain procedural safeguards under
the Due Process Clause of the Fourteenth Amendment.230   

While Pierce and Meyer reflected only implicit recognition of children’s

218. Brown v. Board of Educ., 347 U.S. 483 (1954).  
219. In re Gault, 387 U.S. 1 (1967).  
220. Brown, 347 U.S. at 487-88.  
221. Id. at 493.  
222. Id. (emphasis added).  
223. See generally Rosalind Dixon & Martha C. Nussbaum, Children’s Rights and a

Capabilities Approach, 97 CORNELL L. REV. 549 (2012).  
224. Brown, 347 U.S. at 493.  
225. Cooper v. Aaron, 358 U.S. 1 (1958).  
226. Id. at 16.  
227. In re Gault, 387 U.S. 1 (1967).  
228. Id. at 4.  
229. Id. at 13.  
230. Id. at 30-31.  



2014] IN WINDSOR’S WAKE 43

rights, as co-extensive with or derivative of parental rights, the decisions in
Brown and In re Gault identified children’s rights as independent from parental
rights and enforceable against government action.  In both Brown and In re Gault
children’s rights were being advanced against State action and their claims did
not implicate parental rights or support an argument that enlargement of
children’s rights could result in a corresponding diminishing of parents’ rights.

The 1970s ushered in an era during which children’s liberationists advocated
for greater recognition of children’s rights.231  Perhaps in response to calls for
legal reform, the U.S. Supreme Court recognized the existence of children’s
autonomous privacy interests;232 however, the exact nature of those rights
continues to provide fertile ground for debate.233  One particularly formidable
challenge to the project of defining children’s constitutional rights is that they are
neither fixed nor easily discernible and they continue to be measured in relation
to parental rights, particularly in the familial context.234  To ensure sufficient
constitutional guarantees for children, the scope and character of their rights
should be determined according to that which serves their best interests, and not
in relation to parental rights.235

231. Stephen R. Arnott, Autonomy, Standing, and Children’s Rights, 33 WM. MITCHELL L.
REV. 807, 814 (2007); Gary A. Debele, Custody and Parenting by Persons Other Than Biological
Parents, 83 N.D. L. REV. 1227, 1246-47 (2007).  

232. See, e.g., Bellotti v. Baird, 443 U.S. 622 (1979); Carey v. Population Servs. Int’l, 431
U.S. 678 (1977); Ingraham v. Wright, 430 U.S. 651 (1977); Breed v. Jones, 421 U.S. 519 (1975);
Goss v. Lopez, 419 U.S. 565 (1975); Weber v. Aetna Cas. & Sur., 406 U.S. 164 (1972); In re
Winship, 397 U.S. 358 (1970); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969);
Levy v. Louisiana, 391 U.S. 68 (1968).  

233. See generally Tom D. Campbell, The Rights of the Minor:  As Person, as Juvenile, as
Future Adult, 6 INT’L J.L. & FAM. 1, 2 (1992); Martha Minow, What Ever Happened to Children’s
Rights?, 80 MINN. L. REV. 267 (1995); Janet Leach Richards, Redefining Parenthood: Parental
Rights Versus Child Rights, 40 WAYNE L. REV. 1227 (1994); Michael S. Wald, Children’s Rights: 
A Framework for Analysis, 12 U.C. DAVIS L. REV. 255, 256 (1979); Woodhouse, “Out of
Children’s Needs, Children’s Rights,” supra note 29, at 322. 

234. Fineman, supra  note 209, at 229-30 (“In our system, the family (headed by the parent)
is the social institution to which children with their dependency are referred . . . In most cases, the
family is presumed to function appropriately, and the child, invisible within the private sphere, can
conveniently be ignored . . . .”); see also Glenn Collins, Debate Over Rights of Children Is
Intensifying, N.Y. TIMES, July 21, 1981, at A1, available at http://www.nytimes.com/
1981/07/21/style/debate-over-rights-of-children-is-intensifying.html (quoting Robert Mnookin). 
Professor Robert Mnookin recognizes three major themes reflected in U.S. Supreme Court
jurisprudence addressing children’s rights:  “First, that parents have primary responsibility to raise
children.  Second, that the state has special responsibilities to children, to intervene and protect
them.  And third, that children as people have rights of their own and have rights as individuals in
relation to the family and in relation to the state.”  Id.

235. Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).  Justice Stevens
critiques the plurality’s subversion of children’s constitutional rights, contending:

A parent’s rights with respect to her child have [ ] never been regarded as absolute, but



44 INDIANA LAW REVIEW [Vol. 48:1

While it is clear that children possess enforceable equal protection and due
process rights, what has yet to be resolved is the relative weight to accord
children’s rights when balanced against competing parental interests.  This is of
particular concern in domestic contexts where parental rights and children’s
rights are often in conflict with one another.236  Bellotti v. Baird identified “the
importance of the parental role in child rearing” as a justification for according
children’s rights less constitutional protection than parental rights.237  However
vis-à-vis the state, the Court has questioned the legitimacy of distinguishing
between children’s rights and parental rights and has observed:

The Court’s concern for the vulnerability of children is demonstrated in
its decisions dealing with minors’ claims to constitutional protection
against deprivations of liberty or property interests by the State.  With
respect to many of these claims, we have concluded that the child’s right
is virtually coextensive with that of an adult. . . . These rulings have not
been made on the uncritical assumption that the constitutional rights of
children are indistinguishable from those of adults. . . . [T]he State is
entitled to adjust its legal system to account for children’s vulnerability
and their needs for ‘concern, . . . sympathy, and . . . paternal attention.’238

The proposed claims would not pit children’s rights against parental rights
and engage a set of competing, constitutionally protected interests that courts
have struggled to balance.239  Instead the child challenges Section 2 of DOMA,
which authorizes states to adopt laws that nullify the existing filial relationship
with his or her non-biological parent.  

The child’s claim to an extant, legal, parent-child relationship is identical to
the parent’s corresponding claim to the same, and both claims allege that Section
2 of DOMA authorizes unconstitutional infringement of children’s and parents’
constitutional rights.  Though the invalidation of the legal parent-child

rather are limited by the existence of an actual, developed relationship with a child, and
are tied to the presence or absence of some embodiment of family.  These limitations
have arisen, not simply out of the definition of parenthood itself, but because of this
Court’s assumption that a parent’s interests in a child must be balanced against the
State’s long-recognized interests as parens patriae, and, critically, the child’s own
complementary interest in preserving relationships that serve her welfare and
protection.

Id. (emphasis added) (citations omitted). 
236. Meyer, supra note 195, at 1134 (“[P]arent-focused constitutional doctrine often serves

as a cover, rather than a cause, for many decisions subordinating children’s welfare.”). 
237. Bellotti, 443 U.S. at 634.  
238. Id. at 634-35 (emphasis added).  
239. The Doe court’s treatment of children’s and parental rights as “co-extensive” provides

a clear example of this jurisprudential machination.  In re Adoption of John & James Doe (Gill),
2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008), aff’d sub nom. Fla. Dep’t of Children &
Families v. Adoption of X.X.G. & N.R.G, 45 So. 3d 79 (Fla. Dist. Ct. App. 2010); Washington,
Suffer Not the Little Children, supra note 8, at 245, 259. 



2014] IN WINDSOR’S WAKE 45

relationship may result in different substantive deprivations for a parent than a
child,240 as a descriptive matter, a claim of infringement of the child’s right to the
filial relationship mirrors a parent’s claim of infringement of the same
relationship.  A child’s challenge to Section 2 does not advance in opposition to
parental rights; rather it derives from the dyadic privacy interests shared by
parent and child in the filial relationship.  Accordingly, children’s and parent’s
claims against Section 2 can advance contemporaneously, without divesting
parental rights of their legitimacy or force.  Indeed, the argument advanced here
should meet with less resistance because it challenges harmful government action
unencumbered by constitutionally protected parental autonomy over decisions
for their children.241

C.  Reinforcing the Primacy of Marriage
Professor Nancy Polikoff has written extensively and eloquently about how

challenges to same-sex marriage bans revive the now-constitutionally defunct
distinction between legitimate and illegitimate children.242  Historical distinctions
between legitimate and illegitimate children243 have, in large part, been removed

240. Parents have well defined and widely recognized right to their relationship with their
child and to rear that child, both of which enjoy substantial constitutional protection.  The child has
a less developed right to the kind of care inherent in the filial relationship and which the best
interests standard is considered to secure.    

241. Meyer, supra note 195, at 1117-18.
[T]he courts have been fairly receptive to claims for children’s rights where the claims
have seemed least novel—in classic individual-versus-state conflicts, where the child
was posed directly against the coercive power of government. . . . The suggestion that
children might have rights corresponding to those held by adults against state coercion
and abuse was essentially amendatory, not revolutionary. 

242. See, e.g., Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child:
Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 STAN. J. CIV. RTS.
& CIV. LIBERTIES 201, 208-15, 226 (2009); Nancy D. Polikoff, Ending Marriage As We Know It,
32 HOFSTRA L. REV. 201, 226-29 (2003); Polikoff, For the Sake of All Children, supra note 13, at
584-91; Nancy D. Polikoff, The New “Illegitimacy”:  Winning Backward in the Protection of the
Children of Lesbian Couples, 20 AM. U. J. GENDER SOC. POL’Y & L. 721, 722-23 (2012)
[hereinafter Polikoff, New Illegitimacy].  

243. 1 WILLIAM BLACKSTONE, COMMENTARIES *459.  In his Commentaries on the Laws of
England, William Blackstone, expresses the condemning common law view of illegitimate children,
noted, “The rights [of a bastard] are very few, being only such as he can acquire: for he can inherit
nothing, being looked upon as the son of nobody, and sometimes called filius nullus [son of no
one], sometimes filius populi [son of the people].”  Id.  This view of illegitimate children persisted
well into the 20th century and perpetuated a judgment of illegitimacy as a characteristic or
consequence of immorality.  Since The U.S. Supreme Court’s 1968 decision in Levy v. Louisiana,
the Court’s equal protection jurisprudence has provided a vehicle for the invalidation of laws
discriminating against children born out of wedlock.  Levy v. Louisiana, 391 U.S. 68 (1968).  See
Solangel Maldonado, Illegitimate Harm:  Law, Stigma and Discrimination Against Nonmarital



46 INDIANA LAW REVIEW [Vol. 48:1

by constitutional and legislative mandate.244  In 1968, the U.S. Supreme Court
first acknowledged children born to unmarried parents as “persons” within the
meaning of the Equal Protection Clause.245  In Levy, the Court interpreted the
Equal Protection Clause to protect against the deprivation of wrongful death
awards, by state statutes denying entitlement to children of unmarried parents.246 
In Levy and later cases, the Court expressly rejected the argument that the child’s
legal status and resulting entitlements are dependent upon the marital status of
the parents.247  Underwriting these decisions is an implicit acknowledgment of
the value of the parent-child relationship, independent of the parents’ marital
status.  

Professor Polikoff argues that recognition of same-sex marriage revives the
distinction based on legitimacy and produces, what she has refers to as, the new
illegitimacy.  She argues, 

The prominent argument that same-sex couples must be permitted to
marry to further the best interests of their children also intensifies the
impression that parentage within marriage provides benefits that cannot
be obtained in any other way.  Furthermore, every success limited to
married couples will compound the distinction between those children
whose parents marry and those who do not. . . . Cases or campaigns that
will result in parentage recognition only for married couples are a
mistake because they prioritize marriage equality goals at the expense of
the children of unmarried same-sex couples. The child of two
heterosexuals who are not married has two parents. The child of two
lesbians deserves the same.248

The children’s claim presented here may provoke Professor Polikoff’s
illegitimacy critique because it is challenging Section 2 for authorizing states to

Children, 63 FLA. L. REV. 345, 346-47 (2011).   
244. See Levy, 391 U.S. 68, at 71.  The Uniform Parentage Act, promulgated in 1973 by the

National Conference of Commissioners on Uniform State Laws (NCCUSL), sought to “provid[e]
substantive legal equality for all children regardless of the marital status of their parents . . . .”  Doe
v. Doe, 99 Hawai’i 1, 52 P.3d 255 (2002) (citing STAND. COMM. REP. NO. 190, in 1975 HOUSE J.,
at 1019); see also Unif. Parentage Act § 2 (1973).  Revised provisions of the Act seek to establish
legal equality by mandating that “child[ren] born to parents who are not married to each other
ha[ve] the same rights under the law as [ ] child[ren] born to parents who are married to each
other.”  Id. § 202.  The 1973 Act was adopted by  nineteen  states and many others have adopted
significant portions of it.  Id. at Prefatory Note.  Few states have yet to enact the revised UPA.  Id.

245. Levy, 391 U.S. 68, at 70.  
246. See generally id. at 72.  
247. Id. at 71-72; Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-76 (1972) (“[I]mposing

disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens
should bear some relationship to individual responsibility or wrongdoing.  Obviously, no child is
responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as an
unjust—way of deterring the parent.”).   

248. See Polikoff, New Illegitimacy, supra note 242, at 740. 



2014] IN WINDSOR’S WAKE 47

create non-recognition laws.  In doing so, it could be said to support the creation
of a distinction between two classes of children:  children of married same-sex
parents (i.e., legitimate children) who would be able to maintain legal parentage
with their non-biological parent and children of un-wed, same-sex parents (i.e.,
illegitimate children) who would not.  This type of pseudo caste system would
arguably prioritize marriage by making children’s rights to a legal filial
relationship dependent upon recognition of an out-of-state, marital relationship.

As a substantive matter, the children’s challenges to Section 2 are neither
asserting nor dependent upon the argument that marriage is the sine qua non of
children’s best interests.249  Rather, the proposed claim invokes marriage in an
instrumental capacity, highlighting its value as a vehicle for the creation of the
most protected legal relationship available to a child and her non-biological
parent.  It is not making or supporting a normative claim regarding the superiority
of marriage as the optimal domestic arrangement.  Though marriage provides but
one avenue for the construction of legal parentage, as explained generally supra,
parentage incident to marriage provides the most secure guarantee of protection
available for the relationship between a child and his or her non-biological parent
in a same-sex family.

The claim presented here does not advocate for the marital relationship
because it inherently serves the best interests of children.  In fact, the proposed
challenge would confront the government’s assertion of this premise as a
legitimate or compelling justification for Section 2.250  Claimants would present
evidence demonstrating that the relationship between the child and the parent,
not the relationship between the parents, is the most reliable measure of whether
a child’s interests are served.251  A child’s challenge to Section 2 would assert

249. Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1293 n.41 (N.D. Okla.
2014) (rejecting the state’s claim that opposite-sex marriage provides the optimal environment for
child rearing in support of Oklahoma’s non-recognition law).

250. In Bishop v. United States, defenders of Oklahoma’s marriage law justified the ban as
serving the legitimate goal of insuring the ideal family unit, which they described as:

“1) ‘a family headed by two biological parents in a low-conflict marriage’ because
‘benefits flow in substantial part from the biological connection shared by a child with
both mother and father’; . . . 2) a family unit where children are being ‘raised by both
a mother and a father in a stable family unit;’ and 3) a family unit with ‘gender-
differentiated parenting’ . . . .”

Bishop, 962 F. Supp. 2d at 1293 (citations omitted).  The court questioned the characterization of
the ban’s purpose stating, “many adoptive parents would challenge this defined ‘ideal,’ and [ ]
many ‘non-ideal’ families would question this paternalistic state goal of steering their private
choices into one particular model of child-rearing.”  Id. at 1293 n.41. 

251. Katharine T. Bartlett, Re-Expressing Parenthood, 98 YALE L.J. 293, 295 (1988) (“The
law should force parents to state their claims, and courts to evaluate such claims, not from the
competing, individuated perspectives of either parent or even of the child, but from the perspective
of each parent-child relationship.”); see also Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); In re
Adoption of John & James Doe (Gill), 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008),
aff’d sub nom. Fla. Dep’t of Children & Families v. Adoption of X.X.G. & N.R.G, 45 So. 3d 79



48 INDIANA LAW REVIEW [Vol. 48:1

that the provision authorizes laws that prohibit recognition of an existing filial
relationship in contravention of the child’s best interests and in violation of his
or her constitutional rights.  Accordingly, it avoids Professor Polikoff’s critique
that challenges to marriage bans reinforce the primacy of marriage, devalue
family formations other than marriage, and invite discrimination against children
whose parents are not married.252  

Concededly, many of the post-Windsor challenges to state marriage bans
advance the argument that same-sex marriages serve the same goals as opposite-
sex marriages, including providing the optimal environment for child rearing.253 
These claims, unlike the challenge proposed in this Article, undoubtedly
reinforce the primacy of marriage, not for its utility in securing the most
protected form of parentage, but rather for its inherent value as promoting and
serving the child’s best interests.254  However, courts have recognized the legal
parent child relationship as securing children’s best interests,255 and in the
context of custody, visitation and single parent adoption have done so without
regard for the parents’ marital status.

The lack of coherence in the treatment of children’s rights complicates the
analysis that tests the constitutionality of enactments encroaching upon those
rights.  The incoherence is partially attributable to children’s dependent status
relative to their parents.  There is some justification for children’s rights to be
accorded less weight than adults’ rights where infringement of those rights is
demonstrably related to the preservation of children’s physical, mental and
emotional well-being and where the parent is vested with the authority and
responsibility of ensuring the child’s best interests are served.256  There is less,
if any, justification for deprivations that pursue governmental ends that are not
only unrelated to children’s best interests but actually contravene them.257  

(Fla. Dist. Ct. App. 2010).
252. Polikoff, For the Sake of All Children, supra note 13, at 593-94. 
253. See, e.g., Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525, at *5 (M.D. Tenn.

Mar. 14, 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Bourke v. Beshear, No.
3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014). 

254. Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *16 (S.D. Ohio Apr. 14, 2014).
255. See generally Parham v. J.R., 442 U.S. 584 (1979) and cases cited supra  note 169.
256. Fineman, supra note 209, at 229 (“The child is clearly an individual, but one who is not

fully actualized or capable of autonomous decision making.  Children are dependent in many
ways—economically, emotionally, and often physically.”); see also Bruce C. Hafen, Children’s
Liberation and the New Egalitarianism:  Some Reservations About Abandoning Youth to Their
“Rights,” 1976 BYU L. REV. 604, 650 1976 (“Precisely because of their lack of capacity, minors
should enjoy legally protected rights to special treatment (including some protection against their
own immaturity) that will optimize their opportunities for the development of mature capabilities
that are in their best interest.”).   

257. Hafen, supra note 256, at 644.  Professor Hafen notes :
When children are involved, a significant distinction can be drawn between legal rights
that protect one from undue interference by the state or from the harmful acts of others
and legal rights that permit persons to make affirmative choices of binding consequence,



2014] IN WINDSOR’S WAKE 49

There is no reason to accord children’s constitutional rights to an existing
filial relationship less protection than adults’ rights to the same relationship. 
Arguably the disability Section 2 enables (i.e., authorizing the deprivation of an
existing, legal parent-child relationship) causes greater harm to children because
of their vulnerability and capacity as dependents.  Despite the reality of DOMA’s
harmful impact on children in same-sex families, it was characterized as a child
welfare measure devised to ensure opposite-sex parenting and the optimal
environment for responsible procreation and child rearing.258  For Section 2 to
survive equal protection and due process challenges by children in same-sex
families, in states with non-recognition laws, its defenders must present evidence
that the law serves legitimate governmental ends consistent with the child’s best
interests.  

IV.  THE CONSTITUTIONAL CALCULUS
Section 2 authorizes non-recognition laws that inflict material and stigmatic

harm on children in same-sex families, and that punish children for parental
conduct.  Non-recognition laws categorically deprive children of the filial
relationships that serve their best interests without an individualized evaluation
of quality of the filial relationship and without procedural safeguards. 
Accordingly, children in families with married same-sex parents can challenge
Section 2 as an infringement of their Equal Protection and Substantive Due
Process rights.  This Article will now turn to these constitutional claims.

such as voting, marrying, exercising religious preferences, and choosing whether to seek
education.  For purposes of this discussion, the first category will be referred to as rights
of protection; the second, rights of choice.

Id.; see also generally Gregory Z. Chen, Youth Curfews and the Trilogy of Parent, Child, and State
Relations, 72 N.Y.U. L. REV. 131 (1997); Bernard P. Perimutter, “Unchain the Children:”  Gault,
Therapeutic Jurisprudence, and Shackling, 9 BARRY L. REV. 1 (2007).  But see Katherine Hunt
Federle, Children, Curfews, and the Constitution, 73 WASH. U. L.Q. 1315, 1367 (1995) (noting
that, from the empowerment rights perspective, “[c]apacity would be irrelevant”).  See also
examples cited infra  note 323 (discussing various court holdings that find marriage bans actually
harm, not help kids). 

258. H.R. REP. NO. 104-664, pt. 5, at 2917 (1996).  As the court observed in Henry v. Himes, 
the U.S. Supreme Court in Windsor . . . similarly rejected a purported government
interest in establishing a preference for or encouraging parenting by heterosexual
couples as a justification for denying marital rights to same-sex couples and their
families.  The Supreme Court was offered the same false conjectures about child welfare
. . . and the Supreme Court found those arguments so insubstantial that it did not deign
to acknowledge them.

Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *16 (S.D. Ohio Apr. 14, 2014); see also
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014); Bourke v. Beshear, No. 3:13-CV-750-H,
2014 WL 556729, at *8 (W.D. Ky. Feb. 12, 2014); Bishop v. United States ex rel. Holder, 962 F.
Supp. 2d 1 252 (N.D. Okla. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013);
Greigo v. Olider, 316 P.3d 865 (N.M. 2013). 



50 INDIANA LAW REVIEW [Vol. 48:1

A.  The Equal Protection Infringement
The Equal Protection Clause of the Fourteenth Amendment provides that no

state shall “deny to any person within its jurisdiction the equal protection of the
laws.”259  At the heart of this mandate is a command “that all persons similarly
[situated] should be treated alike.”260  Children in same-sex families whose
parent-child relationships are nullified by the non-recognition laws that Section
2 authorizes are denied equal protection because they are treated differently from
children in opposite-sex families whose filial relationships are recognized.261 
Even though defenders of state same-sex marriage bans have argued that same-
sex couples and opposite-sex couples are not similarly situated because they have
different procreative capacities, there is no reasonable argument to be made that
children in same-sex and opposite-sex families are not similarly situated.262  Both
categories of children are entitled to benefit from the protections and benefits an
existing legal parent-child relationship affords, which arguably constitute a
fundamental liberty interest.263  Section 2 authorizes the enactment of laws that
discriminate against children in same-sex families by invalidating an extant filial
relationship that serves their best interests.  

In certain equal protection claims the right advanced is “not the right to any
specific amount of denied governmental benefits; it is ‘the right to receive
benefits distributed according to classifications which do not without sufficient
justification differentiate among covered applicants solely on the basis of
[impermissible criteria].’”264  Additionally, the Court has held that children
should not suffer discriminatory treatment because of parental conduct,265 and the
imposition of the barrier itself, authorizing laws that nullify a child’s filial

259. U.S. CONST. amend. XIV, § 1.  
260. Plyler v. Doe, 457 U.S. 202, 216 (1982).  
261. Equal protection analysis can also entail the consideration of differential treatment, with

respect to a fundamental right.  See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966)
(“We have long been mindful that where fundamental rights and liberties are asserted under the
Equal Protection Clause, classifications which might invade or restrain them must be closely
scrutinized and carefully confined.”).   

262. Himes, 2014 WL 1418395, at *15 (finding no justification for Ohio’s non-recognition
law’s disparate treatment of children of same-sex parents married in other states).  

263. See infra Part IV.B.  
264. Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1 252, 1267 (N.D. Okla. 2014)

(quoting Day v. Bond, 500 F.3d 1127, 1133 (10th Cir. 2007)); see also Heckler v. Mathews, 465
U.S. 728, 739-40 (1984) (citation omitted) (the Court emphasized, “discrimination itself, by
perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group
as ‘innately inferior’ and therefore as less worthy participants, can cause serious ‘injuries to those
who are denied equal treatment solely because of their membership in a disfavored group’”).

265. Levy v. Louisiana, 391 U.S. 68, 72 (1968) (“We conclude that it is invidious to
discriminate against [non-marital children] when no action, conduct or demeanor of theirs is
possibly relevant to the harm that was done the mother.”); see also Plyler, 457 U.S. at 219-20.



2014] IN WINDSOR’S WAKE 51

relationship with her non-biological parent, is the constitutional injury.266   
In addition to the barrier erected by the state marriage bans authorized by

Section 2, specific, tangible deprivations result from nullification of legal
parentage  These specific, tangible deprivations include, but are not limited to,
denial of: the right to register a child for school; the right to make medical
decisions for a child; the right to obtain a social security card for a child;
securing social security survivor benefits for a child upon a parent’s death; the
right to ensure a child’s entitlement to inheritance upon a parent’s death; the right
to claim the child as a dependent on a parent’s insurance plan or for federal
income tax purposes; the right to obtain a passport for a child; and the right to
travel with a child internationally.267  The infringement of parental rights
resulting from invalidation of the filial relationship, at a minimum, mirrors the
infringement of children’s rights and arguably these deprivations inflict greater
harm on children due to their inherent vulnerability as dependents.  The laws that
Section 2 authorize also cause stigmatic harm which many courts, including the
U.S. Supreme Court in Windsor, have acknowledged as an actionable injury.268 
Children in same-sex families suffer the humiliation of having their families and
their familial relationships relegated to a status inferior to opposite-sex families. 

The degree of constitutional scrutiny applicable to intentional discrimination
by the government against classes of citizens varies according to whether the
targeted group qualifies as suspect, quasi-suspect or non-suspect.269A law that
disadvantages a suspect class (e.g., those that discriminate on the basis of race
or national origin) is subject to strict scrutiny, which regards the enactment with
a jaundiced eye and requires that the enactment be narrowly tailored to achieve
a compelling state interest.270  A law that harms a quasi-suspect class (e.g., those
that discriminate on the basis of gender and legitimacy) is subject to intermediate

266. Ne. Fla. Chapter of the Assoc. Gen. Contractors v. City of Jacksonville, 508 U.S. 656,
666 (1993).  

267. Himes, WL 1418395, at *11 (describing Ohio’s non-recognition law, which prohibited
inclusion of non-biological mother’s name on child’s birth certificate as “the basic currency by
which parents can freely exercise . . . protected rights and responsibilities. . . . The inability to
obtain an accurate birth certificate saddles the child with the life-long disability of a government
identity document that does not reflect the child’s parentage and burdens the ability of the child’s
parents to exercise their parental rights and responsibilities.”).   

268. United States v. Windsor 133 S. Ct. 2675, 2694-96 (2013); see also Bostic v. Rainey, 970
F. Supp. 2d 456, 468 (E.D. Va. 2014) (“Stigmatic injury is sometimes sufficient to support
standing. . . . [Plaintiffs] satisfy the first requirement predicating standing on stigmatic injuries. 
Virginia Code §  20-45.3 prohibits the recognition of their valid California marriage.  Similarly
married opposite-sex individuals do not suffer this deprivation.  Plaintiffs . . . suffer humiliation and
discriminatory treatment on the basis of their sexual orientation.  This stigmatic harm flows directly
from current state law” (citations omitted)).   

269. See generally Windsor, 133 S. Ct. 2675.    
270. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); Korematsu v. United

States, 323 U.S. 214, 216 (1944).  



52 INDIANA LAW REVIEW [Vol. 48:1

constitutional scrutiny and must substantially serve an important state interest.271 
A law that inflicts injury on a class of persons that considered neither suspect nor
quasi-suspect is presumed constitutional, and the law is only required to be
rationally related to a legitimate governmental interest to pass constitutional
muster.272  Courts may consider any available governmental goal to satisfy the
rational basis test as long as the goal is not arbitrary or capricious.273

Furthermore, Section 2 authorizes laws that draw distinctions between
children according to their married parent’s sexual orientation, thereby
discriminating against children because the state objects to their parents’
marriage.  In Henry v. Himes, the court struck down Ohio’s non-recognition law
on equal protection grounds citing its harmful impact on children in same-sex
families.  However, despite the presence of children in the families challenging
the law, children were not plaintiffs in the suit.  Nevertheless, the court
highlighted the distinction the law drew between children based on the sexual
orientation of their parents and explained, 

Defendant’s discriminatory conduct most directly affects the children of
same-sex couples, subjecting these children to harms spared the children
of opposite-sex married parents.  Ohio refuses to give legal recognition
to both parents of these children, based on the State’s disapproval of
their same-sex relationships. . . . The children in Plaintiffs’ and other
same-sex married couples’ families cannot be denied the right to two
legal parents . . . without a sufficient justification.  No such justification
exists.274

Laws, like the ones Section 2 authorizes, that punish children for parental
conduct that a state considers immoral have historically been subject to
heightened constitutional scrutiny and have been ruled unconstitutional.275  There

271. Clark v. Jeter, 486 U.S. 456, 461 (1988); Miss. Univ. for Women v. Hogan, 458 U.S. 718,
723-24 (1982). 

272. Romer v. Evans, 517 U.S. 620, 631 (1996).  
273. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47 (1985) (holding “[t]he

State may not rely on a classification whose relationship to an asserted goal is so attenuated as to
render the distinction arbitrary or irrational.”).  

274. Id. at *15.  
275. See Pickett v. Brown, 462 U.S. 1, 8 (1983); see also Plyler v. Doe 457 U.S. 202, 216 n.14

(1982) (“[l]egislation imposing special disabilities upon groups disfavored by virtue of
circumstances beyond their control suggests the kind of ‘class or caste’ treatment that the
Fourteenth Amendment was designed to abolish.”); Weber v. Aetna Cas. & Surety, 406 U.S. 164,
175 (1972) (describing condemnation of a child for the actions of his parents as “illogical and
unjust”); Levy v. Louisiana, 391 U.S. 68, 72 (1968) (ruling it invidious to discriminate against
illegitimate children for the actions of their parents); Amicus Brief in United States v. Windsor by
Scholars for the Recognition of Children’s Constitutional Rights, 17 IOWA J. GENDER, RACE, &
JUST. 467, 482 (2014) (Tanya Washington, Catherine Smith, and Susannah Pollvogt) (“This Court
has consistently expressed special concern with discrimination against children—in particular
protecting their right to self-determination and to flourish fully in society, without being hampered



2014] IN WINDSOR’S WAKE 53

is no consensus as to the applicable level of constitutional scrutiny among courts
deciding adult challenges to marriage bans;276 however, children’s challenges to
Section 2 and the laws it authorizes make a persuasive argument for the
application of heightened scrutiny.  

In Plyler v. Doe, where the U.S. Supreme Court invalidated a Texas law
denying public education to the children of undocumented immigrants, the Court
made clear, “Even if the state found it expedient to control the conduct of adults
by acting against their children, legislation directing the onus of a parent’s
misconduct against his children does not comport with fundamental conceptions
of justice.”277  Similar to the law at issue in Plyler, Section 2 authorizes laws that
nullify existing filial relationships between children and their parents’ in same-
sex families as a sanction for their parents’ out-of-state, same-sex marriages. 
Accordingly, Section 2 should be subject to heightened scrutiny because it
enables discrimination against children based on parental conduct.  However, the
absence of any justification for the disparate treatment of children in same-sex
families makes it challenging for Section 2 to clear even the lowest constitutional
hurdle erected by rational basis review.  

B.  The Substantive Due Process Infringement
The Due Process Clause of the Fourteenth Amendment prohibits the

government “from abusing [its] power, or employing it as an instrument of
oppression.”278  Rights derived from the liberty interests that fall within the scope
of substantive due process protection are characterized as either fundamental or
non-fundamental and are granted different degrees of constitutional protection
according to their status.279  The two applicable constitutional tests are the same
tests that are used to evaluate a law’s infringement of equal protection
guarantees.  Within the substantive due process framework, state infringement
of a fundamental right is subject to strict scrutiny,280 and state impairment of a

by legal, economic and social barriers imposed by virtue of the circumstances of their birth (citation
omitted). . . . [I]t is impermissible for laws to disadvantage children for matters outside of their
control, in an effort to control the conduct of their parents, or as an expression of moral disapproval
of their parents’ relationships and conduct.”) 

276. Compare Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012); Massachusetts v.
U.S. Dep’t of Health and Human Servs., 682 F.3d 1, 11 (1st Cir. 2012), with Bourke v. Beshear,
No. 3:13-CV-750-H, 2014 WL 556729, at *5 (W.D. Ky. Feb. 12, 2014);  Kitchen v. Herbert, 961
F. Supp. 2d 1181, 1203 (D. Utah 2013).  

277. Plyler v. Doe, 457 U.S. 202, 219-20 (1982).  
278. Davidson v. Cannon, 474 U.S. 344, 348 (1986).  
279. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that the Due Process Clause

“provides heightened protection against government interference with certain fundamental rights
and liberty interests.”).  

280. Zablocki v. Redhail, 434 U.S. 374, 381 (1978) (requiring strict scrutiny when “the
classification created by the statute infringed upon a fundamental right”).  



54 INDIANA LAW REVIEW [Vol. 48:1

non-fundamental right is subject to rational basis review.281
The U.S. Supreme Court characterizes fundamental rights as those that are

“implicit in the concept of ordered liberty,” such that “neither liberty nor justice
would exist if [they] were sacrificed.”282  U.S. Supreme Court rulings make clear
that parental rights are fundamental and only exceptional circumstances justify
their infringement.283  The interests of parents in the care, custody and control of
their children are considered among the oldest fundamental liberty interests;284
therefore children should be said to possess complementary, fundamental rights
to the care, custody and control the legal parent-child relationship provides and
which serves their best interests.285  

The Court has instructed, “‘[s]ubstantive due process’ analysis must begin
with a careful description of the asserted right.”286  Though the permanency,
security and stability inherent in the filial relationship are not enumerated
constitutional rights, because they serve to ensure children’s best interests, they
should be considered fundamental in character.  The Court has recognized that
the Due Process Clause protects a number of un-enumerated rights from
infringement by government action, and explained: 

[T]he full scope of liberty guaranteed by the Due Process Clause cannot
be found in or limited by the precise terms of the specific guarantees
elsewhere provided in the Constitution . . .This ‘liberty’. . . includes a
freedom from all substantial arbitrary impositions and purposeless
restraints, . . . and which also recognizes . . . that certain interests require
particularly careful scrutiny of the state needs asserted to justify their
abridgment.287

281. See Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925).  
282. Palko v. Connecticut, 302 U.S. 319, 325-26 (1937).  
283. Troxel v. Granville, 530 U.S. 57, 66 (2000); Parham v. J.R., 442 U.S. 584, 602 (1979);

Stanley v. Illinois, 405 U.S. 645, 651-52 (1972).  See generally  Henry v. Himes, No. 1:14-cv-129,
2014 WL 1418395, at *7 (S.D. Ohio Apr. 14, 2014) (recognizing “a number of fundamental rights
and/or liberty interests protected by the Due Process clause that are implicated by [Ohio’s] marriage
recognition ban, including the right to marry, the right to remain marry (citation omitted), and the
right to parental autonomy.”).  

284. See discussion supra Part III.B.  
285. Washington, What About the Children?, supra note 8, at 42-43 (“Despite the Supreme

Court’s reluctance to recognize new fundamental rights (citation omitted), it has done so most
frequently in the area of family relations.”).  See generally Barbara Woodhouse, Waiting for
Loving:  The Child’s Fundamental Right to Adoption , 34 CAP. U. L. REV. 297 (2005).  If children’s
rights to an existing filial relationship do not rank as fundamental, one can hardly conceive of
children’s rights that would.  But see Michael H. v. Gerald D., 491 U.S. 110, 130 (1989)
(explaining, “We have never had occasion to decide whether a child has a liberty interest,
symmetrical with that of her parent, in maintaining her filial relationship.  We need not do so here
. . . .”).   

286. Reno v. Flores, 507 U.S. 292, 302 (1993).  
287. Poe v. Ullman, 367 U.S. 497, 543 (1961).  



2014] IN WINDSOR’S WAKE 55

Indeed, if these quintessential qualities of the legal parent-child relationship, do
not constitute fundamental rights then arguably children possess no such
rights—a conclusion at odds with U.S. Supreme Court jurisprudence.288  There
is a persuasive argument to be made that Section 2 infringes children’s
fundamental rights because it authorizes laws that invalidate existing filial
relationships, thereby depriving children of the quantum and kind of care they
have been receiving.  Children’s best interests have been recognized as a
“substantial governmental interest;”289 therefore, heightened scrutiny should
apply.290  

Though children’s rights infringed by Section 2 should be adjudicated as
fundamental, the success of children’s challenges to that provision is not

288. Bellotti v. Baird, 443 U.S. 622, 634-35 (1979) (“The Court’s concern for the vulnerability
of children is demonstrated in its decisions dealing with minors’ claims to constitutional protection
against deprivations of liberty or property interests by the State.”); Powell v. Alabama, 287 U.S.
45, 50, 57-58 (1932).  

289. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (characterizing the best interests of the child
as “indisputably a substantial governmental interest for purposes of the Equal Protection Clause”).

290. There is some debate about whether the adult rights infringed are fundamental in
character.  The debate centers on whether the right infringed by marriage bans is the right to marry
or whether same-sex couples are seeking recognition of a new right (i.e., the right to marry someone
of the same-sex).  Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *7 (S.D. Ohio Apr. 14,
2014) (noting, “Some courts have not found that a right to same-sex marriage is implicated in the
fundamental right to marry.”); see Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at
*5 (W.D. Ky. Feb. 12, 2014) (“Neither the Supreme Court nor the Sixth Circuit has stated that the
fundamental right to marry includes a fundamental right to marry someone of the same sex. . . . In
Windsor the Supreme Court did not clearly state that the non-recognition of marriages under
Section 3 of DOMA implicated a fundamental right . . . .”); Jackson v. Abercrombie, 884 F. Supp.
2d 1065, 1096 (D. Haw. 2012) (referencing right infringed as “an asserted new right to same-sex
marriage”).  But see Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1203 (D. Utah 2014) (“Both same-
sex and opposite sex marriage are therefore simply manifestations of one right—the right to
marry—applied to people with different sexual identities.”).  The Windsor majority’s reticence to
clearly define the nature of the constitutional right infringed by Section 3 of DOMA and to
articulate the applicable constitutional test further fuels the debate.  Some of language in the
opinion suggests the majority is applying rational basis.  United States v. Windsor, 133 S. Ct. 2675,
2996 (2013) (noting “no legitimate purpose overcomes the purpose and effect to disparage and to
injure”).  However, the level of scrutiny applied seems inconsistent with rational basis review.  Id.
at 2706 (Scalia, J., dissenting) (the majority “does not apply strict scrutiny, and [although] its
central propositions are taken from rational basis cases . . . the Court certainly does not apply
anything that resembles that deferential framework”); see Bourke, 2014 WL 556729, at *4
(“Although the majority opinion [in Windsor] covered many topics, it never clearly explained the
applicable standard of review. . . So, we are left without a clear answer.”).  Fundamental rights
adjudication of the rights asserted in the proposed children’s claims against Section 2 should not
be encumbered by conflicting interpretations of the liberty interests infringed (i.e., permanency,
stability and security).  



56 INDIANA LAW REVIEW [Vol. 48:1

dependent upon this classification.  Even under rational basis review, the State
must establish that marriage bans are not “arbitrary or without reasonable relation
to some purpose within the competency of the state to effect.”291  Because
Section 2 authorizes laws that nullify children’s filial relationships and
compromise, rather than serve, their best interests, it should be difficult for it to
withstand even rational basis review.  

C.  Interrogating Governmental Interests
In both the equal protection and due process contexts the applicable

constitutional tests require a sufficient nexus between the law and its purpose.292 
The Court has explained:

[t]he purpose of a statute must be determined from the natural and legal
effect of the language employed; and whether it is or is not repugnant to
the Constitution of the United States must be determined from the
natural effect of such statutes when put into operation, and not from their
proclaimed purpose.293

The Court has made clear that government has no “interest in enforcing
private, moral or religious beliefs without an accompanying secular purpose,”294
and it has emphasized that where a law is “so discontinuous with the reasons
offered for it that . . . [it] seems inexplicable by anything but animus toward the
class it affects; it lacks a relationship to legitimate state interests.”295  

Under rational basis review the legitimacy of the state’s interest is presumed
and the plaintiffs are burdened with challenging the legitimacy of the
government’s interest.296  For the proposed challenges to Section 2 to be

291. Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923).  
292. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000)(holding, “[W]e will not overturn

such [government action] unless the varying treatment of different groups or persons is so unrelated
to the achievement of any combination of legitimate purposes that we can only conclude that the
[government’s] actions were irrational.”); Romer v. Evans, 517 U.S. 620, 633 (1996) (courts must
“insist on knowing the relation between the classification adopted and the object to be attained.”).

293. Lochner v. New York, 198 U.S. 45, 64 (1905).  
294. Lawrence v. State, No. 14-99-00109, 2000 WL 729417 (Tex. Ct. App. June 8, 2000)

(unpaginated), withdrawn , 41 S.W.3d 349 (2001), cert. granted, 537 U.S. 1044 (2002), rev’d, 539
U.S. 558 (2003).  

295. Romer, 517 U.S. at 632.  
296. Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *5-6 (W.D. Ky. Feb. 12,

2014) (applying rational basis review to Kentucky’s constitutional amendment banning gay
marriage and opining, “Ultimately, the result in this case is unaffected by the level of scrutiny
applied. . . .  Plaintiff’s have the burden to prove either that there is no conceivable legitimate
purpose for the law or that the means chosen to effectuate a legitimate purpose are not rationally
related to that purpose.  This standard is highly deferential to government activity but is
surmountable, particularly in the context of discrimination based on sexual orientation. . . .  Even
under this most deferential standard of review, courts must ‘still insist on knowing the  relation



2014] IN WINDSOR’S WAKE 57

successful, plaintiffs would need to establish, as an evidentiary matter, that
sexual orientation does not inform parental competency; that parenting by gays
and lesbians does not impair children’s best interests; and that categorically
depriving children of an existing filial relationship compromises the permanency,
stability, and security that serves their best interests.297 

In Bourke v. Beshear,298 adults and children in same-sex families challenged
Kentucky’s non-recognition laws.299  The court, applying the rational basis test,
considered the following justifications for the ban: “the legitimate government
interest of preserving the state’s institution of traditional marriage,”300
responsible procreation and childrearing, steering naturally procreative
relationships into stable unions, promoting the optimal childrearing environment,
and proceeding with caution when considering changes in how the state defines
marriage.301  The court, describing the reasons cited for the ban as “compris[ing]
all those of which the Court might possibly conceive,” held that all of the

between the classification adopted and the object to be attained’”); see also Henry v. Himes, No.
1:14-cv-129, 2014 WL 1418395, at *16 (S.D. Ohio Apr. 14, 2014) (observing, “the overwhelming
scientific consensus, based on decades of peer-reviewed scientific research, shows unequivocally
that children raised by same-sex couples are just as well adjusted as those raised by heterosexual
couples.”); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 960 (Mass. 2003).

297. Under rational basis review, any conceivable state interest is sufficient to save a statute
from invalidation.  Romer v. Evans, 517 U.S. 620, 631 (1996) (holding that “the legislative
classification [will survive] so long as it bears a rational relation to some legitimate end.”).
However, to date all of the federal circuit courts tasked with deciding appeals to lower court
decisions striking state marriage bans have rejected every justification asserted by proponents in
defense of these bans including: federalism, preserving traditional marriage, respecting democratic
processes, ensuring opposite-sex parenting, promoting responsible procreation and facilitating
optimal childrearing.  See  Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014);
Baskin v. Bogan, No 14-2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014); Bostic v. Schafer, 760
F.3d 352 (4th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014).  If heightened scrutiny
is, as has been argued, the applicable test within the equal protection or substantive due process
contexts, the burden of proof and production would shift to DOMA’s defenders and the purposes
for which Section 2 was enacted would no longer enjoy presumptive legitimacy.   

298. Bourke, 2014 WL 556729.   
299. Kentucky, like Georgia, enacted laws and amended its constitution to prohibit same-sex

marriage and to deny recognition to out-of-state, same-sex marriages.  See KY. CONST. § 233A; KY.
REV. STAT. ANN. § 402.005 (West 2013).  

300. Bourke, 2014 WL 556729, at *7.  
301. Id. at *8.  The court considered justifications offered by the state of Kentucky and by the

Family Trust Foundation of Kentucky Inc., which submitted an amicus brief that the court described
as “cast[ing] a broader net in search of reasons to justify Kentucky’s laws.”  Id.; see also Wright
v. Arkansas, No. 60CV-13-2662 at 7 (Cir. Ct. of Pulaski Cnty. May 9, 2014) (“The defendants offer
several rationalizations for the disparate treatment of same-sex couples such as the basic premise
of the referendum process, procreation, that denying marriage protections to same-sex couples and
their families is justified in the name of protecting children, and continuity of the laws and tradition. 
None of these reasons provide a rational basis for adopting the amendment.”).  



58 INDIANA LAW REVIEW [Vol. 48:1

proffered justifications failed to constitute legitimate government ends.  The
court rejected the characterization of Kentucky’s non-recognition law as a child
welfare measure, and held: 

The Court fails to see how having a family could conceivably harm
children.  Indeed, Justice Kennedy explained that it was the
government’s failure to recognize same-sex marriages that harmed
children, not having married parents who happened to be of the same sex
. . . . . [N]o one in this case has offered factual or rational reasons why
Kentucky’s laws are rationally related to any of these purposes . . . . And
no one has offered evidence that same-sex couples would be any less
capable of raising children . . . .  [T]he Court cannot conceive of any
reasons for enacting the laws challenged here.  Even if one were to
conclude that Kentucky’s laws do not show animus, they cannot
withstand traditional rational basis review.302

The court in Himes, which gave due consideration to the Ohio ban’s harmful
impact on children in same-sex families, observed that post-Windsor trial court
decisions have uniformly reached the conclusion that “child welfare concerns
weigh exclusively in favor of recognizing the marital rights of same-sex
couples.”303  The court further noted, “[t]he Supreme Court was offered . . . false
conjectures about child welfare . . . and the . . . Court found those arguments so
insubstantial that it did not deign to acknowledge them.”304 

As the Court has noted, government action infringing on constitutional rights
must “find some footing in the realities of the subject addressed by the
legislation.”305  Laws, like Section 2, that parade as child protectionist measures
must be grounded in more than conjecture and prejudice.306  It would not be
constitutionally sufficient for the government to describe and justify Section 2
as preserving and protecting children’s interests when its actual effect authorizes
the invalidation of existing filial relationships and deprives children of the
permanency, stability, and security inherent in those relationships.  The
legitimacy of the government’s justification for Section 2 should be assessed
according to credible research and data reporting whether and how children’s

302. Bourke, 2014 WL 556729, at *8 (citations omitted).  
303. Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525, at *5 (M.D. Tenn. Mar. 14,

2014) ; Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395, at *16 (S.D. Ohio Apr. 14, 2014);
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1 252 (N.D. Okla. 2014); Bonauto, supra 
note 22, at 13.  It is important, however, to note that this reasoning credits the marital relationship
with providing that which serves children’s best interests rather than the parent-child relationship
itself.  See discussion supra Part III.C.  

304. Himes, 2014 WL 1418395, at *16.
305. Heller v. Doe, 509 U.S. 312, 321 (1993).  
306. De Leon v. Perry 975 F. Supp. 2d 632, 654 (W.D. Tex. 2014) (rejecting defenders of

Texas’ marriage ban on the grounds that “Defendants’ preferred rationale presumes that same-sex
couples cannot be good parents-this is the same type of unconstitutional and unfounded
presumption that the Supreme Court has held ‘cannot stand.’ (citation omitted)”).   



2014] IN WINDSOR’S WAKE 59

best interests are served by categorically depriving them of existing filial
relationships and the benefits and protections inherent in those relationships.307 
The Supreme Court has highlighted courts’ “constitutional duty to review factual
findings where constitutional rights are at stake” and the Court described
“uncritical deference to factual findings . . . [as] inappropriate.”308   

The conclusion that marriage bans protect children and serve their interests
contradicts “thirty-five years of studies showing that children of gay and lesbian
parents are normal and healthy on every measure of child development.”309  In
DeBoer the court carefully considered the evidence presented by defenders of
Michigan’s marriage and adoption bans in support of their argument that the laws
served to provide “children with ‘biologically connected’ role models of both
genders that are necessary to foster healthy psychological development.”310  The
court accorded considerable weight to empirical evidence presented by the
plaintiffs’ experts challenging the state’s presumptions about gay parenting and
establishing that the best interest of the child is served by particular parental
competencies, not the sexual orientation of the caregiver.311  The court

307. Latta v. Otter, No. 14-35420, 2014 WL 4977682, at *5 (9th Cir. Oct. 7, 2014) (noting that
defendants failed to meet their evidentiary burden, the court opined, “We pause briefly before
considering the substance of defendants’ arguments to address the contention that their conclusions
about the future effects of same-sex marriage on parenting are legislative facts entitled to deference. 
Defendants have not demonstrated that the Idaho and Nevada legislatures actually found the facts
asserted in their briefs; even if they had, deference would not be warranted.  Unsupported legislative
conclusions as to whether particular policies will have societal effects of the sort at issue in this
case—determinations which often, as here, implicate constitutional rights—have not been afforded
deference by the Court.”). 

308. Gonzales v. Carhart, 550 U.S. 124, 165-66 (2007). 
309. American Psychological Association, Sexual Orientation, Parents, & Children, COUNCIL

POLICY MANUAL (July 30, 2004), http://www.apa.org/about/policy/parenting.aspx (“research has
shown that the adjustment, development, and psychological well-being of children is unrelated to
parental sexual orientation and that the children of lesbian and gay parents are as likely as those of
heterosexual parents to flourish.”); see also Mary L. Bonauto, Civil Marriage as a Locus of Civil
Rights Struggles, 30 HUMAN RTS. 3, 7 (2003); Michael S. Wald, Same-Sex Couple Marriage:  A
Family Policy Perspective, 9 VA. J. SOC. POL’Y & L. 291, 321 (2001) (stating that “all of the
evidence shows that children raised by gay parents develop just as well as children raised by
heterosexual couples”).  

310. DeBoer v. Snyder, 973 F. Supp. 2d 757, 760 (E.D. Mich. 2014) (defendants also
proffered “avoiding the unintended consequences that might result from redefining marriage; . . .
upholding tradition and morality; and . . . promoting the transition of ‘naturally procreative
relationships into stable unions’” as justifications for its ban).   

311. Id. at 761.  Psychologist David Brodzinsky “testified that decades of social science
research studies indicate that there is no discernible difference in parenting competence between
lesbian and gay adults and their heterosexual counterparts (citation omitted).”  Dr. Brodzinsky
noted no “discernible difference in the developmental outcomes of children raised by same-sex
parents as compared to those children raised by heterosexual parents (citation omitted).”  He
identified the primary factors influencing childhood development to include: 



60 INDIANA LAW REVIEW [Vol. 48:1

concluded, “What matters is the ‘quality of parenting that’s being offered’ to the
child . . . . [and] studies, approximately 150 in number, have repeatedly
demonstrated that there is no scientific basis to conclude that children raised by
same-sex parents fare worse than those raised by heterosexual parents.”312  The
court was convinced by testimony showing that “children being raised by same-
sex couples have only one legal parent and are at risk of being placed in ‘legal

[the] quality of parent-child relationships; quality of the relationships between the
parents . . . [t]he characteristics of the parent, the styles that they adopt, parental warmth
and nurturance [sic], emotional sensitivity.  The ability to employ age appropriate rules
and structure for the child.  And the kinds of educational opportunities that children are
afforded is important, as well as the resources that are provided for the child, not only
in the family itself, but the resources that, from the outside, that impact the family and
the child in particular.  And of course, the mental health of the . . . parents.

Id.  Sociologist Michael Rosenfeld described the strong consensus among professional
organizations finding no differences in parenting based on the sexual orientation and no differences
in outcomes for children in same-sex families.  He stated in his expert report:

Every major professional organization in this country whose focus is the health and
well-being of children and families has reviewed the data on outcomes for children
raised by lesbian and gay couples, including the methods by which the data were
collected, and have concluded that these children are not disadvantaged compared to
children raised in heterosexual parent households.  Organizations expressing support
for parenting, adoption, and/or fostering by lesbian and gay couples include (but are not
limited to): American Medical Association, American Academy of Pediatrics, American
Psychiatric Association, American Academy of Child and Adolescent Psychiatry,
American Psychoanalytic Association, American Psychological Association, Child
Welfare League of America, National Association of Social Workers, and the
Donaldson Adoption Institute.

Id. at 762.  One important development reflected in the litigation of marriage bans has been the
presentation of empirical data confronting the state’s proffered justifications for these laws.  In
addition, Plaintiffs have also subjected state experts to intense cross-examination, designed to reveal
the absence of credible, reliable social science data underwriting claims about the harmful impact
of these bans on children.  See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927, 936 (N.D.
Cal. 2010) (Plaintiffs’ challenging California’s marriage ban, Proposition 8, made an evidentiary
showing that resulted in the following findings of fact by the District Court: 

The factors that affect whether a child is well-adjusted are:  (1) the quality of a child’s
relationship with his or her parents; (2) the quality of the relationship between a child’s
parents or significant adults in the child’s life; and (3) the availability of economic and
social resources . . . The sexual orientation of an individual does not determine whether
that individual can be a good parent.  Children raised by gay or lesbian parents are as
likely as children raised by heterosexual parents to be healthy, successful and well-
adjusted.  The research supporting this conclusion is accepted beyond serious debate in
the field of developmental psychology.

Id. at 980.  
312. DeBoer, 973 F. Supp. 2d at 761.  



2014] IN WINDSOR’S WAKE 61

limbo’ if that parent dies or is incapacitated.”313  It concluded, “[d]enying same-
sex couples the ability to marry therefore has a manifestly harmful and
destabilizing effect on such couples’ children.”314

In contrast to the court’s regard for the plaintiffs’ witnesses as “fully
credible”315 and “highly credible,”316 the court determined the defendants’
witnesses’ testimony to be “entirely unbelievable and not worthy of serious
consideration”317 and to be representative of “a fringe viewpoint that is rejected
by the vast majority of their colleagues across a variety of social science
fields.”318  The court rejected the state’s optimal child-rearing rationale and held,
“the isolated studies cited by the state defendants do not support the argument
that children raised by heterosexual couples have better outcomes than children
raised by same-sex couples. . . .the overwhelming weight of the scientific
evidence supports the ‘no differences’ viewpoint.”319  

Even as the U.S. Supreme Court was deciding Windsor, The American
Pediatrics Association, which reviewed 30 years of research on the subject of gay
parenting, issued a policy statement endorsing gay marriage as promoting
children’s best interests.320  Children’s claims against Section 2, as authorizing

313. Id. at 764.
314. Id.  
315. Id. at 761, 764.  
316. Id. at 762, 764.  
317. Id. at 766.  In support of its justifications for its marriage and adoption bans the state

called its star witness, Sociologist Mark Regnerus, to testify.  His testimony focused on the results
of a 2012 study he conducted (New Family Structures Study).  His findings resulted in the
following conclusions:  

[C]hildren who reported that their mothers had a same-sex relationship were less likely
to pursue an education or obtain full-time employment and more likely to be
unemployed and receiving public assistance, more likely to experience sexual assault,
more likely to cheat on their partners or spouses and more likely to have been arrested
at some point in their past.  Similarly, Regnerus discovered that children who reported
that their fathers had a same-sex relationship were more likely to have been arrested,
more likely to have plead guilty to non-minor offenses and more likely to have
numerous sexual partners. 

Id. at 765.  The court questioned the credibility and reliability of the study and noted that Regnerus’
study was “heavily criticized . . . on several grounds” by sociological and demographic experts. 
Further noting the limitations of the study, the court also observed, “Regnerus acknowledged that
‘any suboptimal outcomes may not be due to the sexual orientation of the parent’ and that ‘[t]he
exact source of group differences’ are unknown.”  Id. at 765.  The court described the study as
“hastily concocted at the behest of a third-party funder, which found ‘it essential that the necessary
data be gathered to settle the question in the forum of public debate about what kinds of family
arrangement [sic] are best for society’ and which ‘was confident that the traditional understanding
of marriage will be vindicated by this study.’”  Id. (citation omitted).

318. DeBoer v. Snyder, 973 F. Supp. 2d 757, 768 (E.D. Mich. 2014).  
319. Id. at 771.  
320. AMERICAN ACADEMY OF PEDIATRICS, Promoting the Well-Being of Children Whose



62 INDIANA LAW REVIEW [Vol. 48:1

laws that deprive them of their existing filial relationships, would directly
challenge the government’s characterization of the provision as a child protective
measure.   These claims would compel a court to examine the impact of Section
2, within the context of evidence that depriving children of the permanency,
stability, and security provided for in an existing filial relationship impairs their
best interests.  The available credible evidence significantly frustrates the state’s
ability to demonstrate even a rational relationship between Section 2 and its
purported purpose of protecting children and preserving their best interests.

Rational basis review may be an obsequious standard; however, it “is not a
toothless one.”321  The court in Latta v. Otter rejected the state of Idaho’s optimal
child rearing justification for its non-recognition law, and stated,

Idaho’s Marriage Laws fail to advance the State’s interest because they
withhold legal, financial, and social benefits from the very group they
purportedly protect—children. . . . Failing to shield Idaho’s children in
any rational way, Idaho’s Marriage Laws fall on the sword they wield
against same-sex couples and their families.322

The overwhelming majority of post-Windsor courts deciding the
constitutionality of state marriage bans have recognized protecting children as a
legitimate or compelling state interest; however, they have found no logical link
between that interests and laws prohibiting the recognition of same-sex
marriages.323  In Latta the court held:

Parents are Gay or Lesbian, 131 PEDIATRICS 827, 830 (2013) (“There is extensive research
documenting that there is no causal relationship between parents’ sexual orientation and children’s
emotional, psychosocial, and behavioral development.”).  To be sure, this study and others like it,
highlighting the positive benefits of marriage for children in same-sex marriage, confirm Professor
Polikoff’s critique that focusing on the marital relationship, rather than on the parent-child
relationship, as serving children’s best interests reinforces the primacy of marriage.  See Polikoff,
For the Sake of All Children, supra note 13, at 593-94.  

321. Matthews v. Lucas, 427 U.S. 495, 510 (1976).  
322. Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at *24 (D. Idaho May 13,

2014).  
323. See  Latta v. Otter, No. 14-35420, 2014 WL 4977682, at *11 (“Defendants’ essential

contention is that bans on same-sex marriage promote the welfare of children, by encouraging good
parenting in stable opposite-sex families. . . . Defendants have presented no evidence of any such
effect.”); Bostic v. Schafer, 760 F.3d 352, 384 (4th Cir. 2014) (“Because the Proponents’ arguments
are based on overbroad generalizations about same-sex parents, and because there is no link
between banning same-sex marriage and promoting optimal childrearing, this aim cannot support
the Virginia Marriage Laws.”); Bostic v. Rainey, 970 F. Supp. 2d 456, 478 (E.D. Va. 2014) (“Of
course the welfare of our children is a legitimate state interest. However, limiting marriage to
opposite sex couples fails to further this interest. . . . [N]eedlessly stigmatizing and humiliating
children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays
that interest . . . . The ‘for the children rationale’ rests upon an unconstitutional, hurtful and
unfounded presumption that same-sex couples cannot be good parents. . . . The state’s compelling
interests in protecting and supporting our children are not furthered by a prohibition against same-



2014] IN WINDSOR’S WAKE 63

Children are indeed both vulnerable and essential to the perpetuation of
society . . . . [a]nd although the Court agrees that the State has a
compelling interest in maximizing child welfare, the link between the
interest in protecting children and Idaho’s Marriage Laws is so
attenuated that it is not rational, let alone exceedingly persuasive.324

In light of Section 2’s direct and harmful impact on children’s best interests,
it cannot be said to rationally relate to any legitimate governmental goal and it
should be determined to be unconstitutional on equal protection and due process
grounds.  

CONCLUSION
Despite the direct and adverse impact of same-sex marriage bans on children

of same-sex parents, children’s interests are routinely marginalized in the gay
marriage debate and in cases challenging marriage bans.  Even after the Court’s
ruling in Windsor, the civil and constitutional rights of adults and the primacy of
marriage continue to occupy center stage—dominating the discourse and framing
litigation efforts to invalidate marriage bans.  In the court of public opinion,
politicians, legislators, religious leaders, community activists, and jurists have
expressed their views on same-sex marriage; however, one voice has been

sex marriage.”); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *8 (W.D. Ky. Feb.
12, 2014) (“The Court fails to see how having a family could conceivably harm children . . . [a]nd
no one has offered evidence that same-sex couples would be any less capable of raising children.
. . .”); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1212 (D. Utah 2014) (“[T]he State fails to
demonstrate any rational link between its prohibition of same-sex marriage and its goal of having
more children raised in the family structure he State wishes to promote. . . [T]he State’s prohibition
of same-sex marriage detracts from the State’s goal of promoting optimal environments for children. 
The State does not contest the Plaintiff’s assertion that roughly 3,000 children are currently being
raised by same-sex couples in Utah (citation omitted).  These children are also worthy of the State’s
protection, yet Amendment 3 harms them for the same reasons that the Supreme Court found that
DOMA harmed the children of same-sex couples.”); De Leon v. Perry 975 F. Supp. 2d 632, 653
(W.D. Tex. 2014) (“There is no doubt that the welfare of children is a legitimate state interest;
however, limiting marriage to opposite-sex couples fails to further this interest. . . . Instead, Section
32 causes needless stigmatization and humiliation for children being raised by the loving same-sex
couples being targeted . . . . Defendants have not provided any evidentiary support for their
assertion that denying marriage to same-sex couples positively affects childrearing.  Accordingly,
this Court agrees with other district courts that have recently reviewed this issue and concludes that
there is no rational connection between Defendants’ assertion and the legitimate interest of
successful childrearing.”).  But see Robicheaux v. Caldwell, No. 13-5090, slip op. at 23 (E.D. La.
Sept. 8, 2014) (“This Court is persuaded that Louisiana has a legitimate interest . . . whether
obsolete in the opinon of some, or not, in the opinion of others . . . in linking children to an intact
family formed by their two biological parents, as specifically understood by Justice Kennedy in
Windsor.”). 

324. Latta , 2014 WL 1909999, at *22.   



64 INDIANA LAW REVIEW [Vol. 48:1

conspicuously absent—the voice of children in same-sex families.  During oral
arguments in Perry and Windsor, there was only one substantial reference, over
two days of hearings, to the interests of children.325  At the Perry hearing, Justice
Kennedy remarked, “There are some 40,000 children in California . . . that live
with same-sex parents, and they want their parents to have full recognition and
full status.  The voice of those children is important in this case don’t you
think?”326  The proposed claim would respond to Justice Kennedy’s query in the
affirmative, turn the spotlight on children who are deprived of existing filial
relationships by non-recognition laws authorized by Section 2, and give greater
voice and force to children’s rights.

Children in same-sex families are a particularly vulnerable demographic. 
They deserve government action that serves rather than compromises their best
interests.  They deserve to be protected from, not victimized by, harmful and
discriminatory governmental action, authorizing states to enact laws that
invalidate existing filial relationships with their parents.  Section 2 operates to
harm children by depriving them of relationships that serve their best interests,
and for that reason it should be invalidated as an infringement of children’s
constitutional rights.

325. Transcript of Oral Argument at 21, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No.
12-144), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-
144.pdf. 

326. Id.