Document Type

Article

Publication Date

2025

Abstract

Since the 2015 Obergefell v. Hodges decision, same-sex marriages have increased significantly in the United States. The American Community Survey data collected in 2022 shows that there are around 1.3 million same-sex couple households in the country, up from 565,000 in 2028. Just over half of these couples are legally married, up nearly 400% from prior to Obergefell. This data not only shows the significance of Obergefell for the LGBTQ+ community, but it also frames a generational shift in attitudes on marriage and family.

With the rise in same-sex couples accessing marriage has come greater visibility, representation, and acknowledgement. Couples are, in turn, empowered to create families that felt out of reach before Obergefell. In doing so, these LGBTQ+ couples expect the same cultural and legal dignity bestowed upon their marriages. The reality though is that the ten years since Obergefell have also involved increased anti-LGBTQ+ legislation. These hateful and harmful legislative attempts even led the Human Rights Campaign to declare a state of emergency for LGBTQ+ people in 2023.

During this period, children of LGBTQ+ parents also became targets for conservative political forces. Growing homophobic and transphobic rhetoric impacts the lived experiences of these children and fuels discriminatory conduct against them. In turn, Obergefell's promise of dignity for children of LGBTQ+ parents remains unfulfilled and no federal, state, or local legal protections exist to meet these needs. In response, this Article calls for the establishment of familial association nondiscrimination protections through the amendment and adoption of the Equality Act. As the equal protection analysis shows, protecting children from their parents' conduct and identity is a well-established federal concern. Federal familial association protections for children of LGBTQ+ parents would be a significant step in realizing the promise made in Obergefell and stoke broader thought about the bias family members of minoritized identities confront in this country.

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