The Supreme Court has long made clear that parents have a constitutionally protected interest in the care, custody, and control of their children. But the Constitution does not define who qualifies as a “parent” to exercise parental rights. Without meaningful guidance from the Supreme Court, states developed disparate standards for defining “parent.” States thus alternatively define legal parentage based on biology, intent, function, or a combination thereof. Historically, however, parenthood was determined by marriage. Indeed, the marital presumption is a pillar in family law that has withstood the test of time and continues to play a pivotal role in determinations of legal parentage. Given the presumption’s significance in family law, and its derived significance in immigration law, it is unlikely that it will be discarded in either context. Adapting the traditional marital presumption to meet the needs of modern families is a herculean task, however, which cannot be accomplished in one fell swoop or through the efforts of any one rulemaking body.
To the extent lawmakers would endeavor to and could possibly accomplish this task, this Comment seeks to alert those lawmakers to the informative overlaps found in three circumstances applying the marital presumption: birth certificates, same-sex couples, and immigration. State family law’s interpretation of the marital presumption as it is applied to same-sex couples demonstrates that the presumption can be adapted to accommodate the modern family. Pavan v. Smith’s gloss on Obergefell v. Hodges instructs that those benefits of marriage initially thought tied to biology need not be, but it leaves open the possibility of a strict biology regime. The U.S. State Department’s biological interpretation of immigration law’s marital presumption illustrates the negatives of such a strict biology regime. This Comment analyzes application of the marital presumption in the three circumstances and presents at least one way in which a nongendered, nonbiological marital presumption could be formulated to accommodate married same-sex couples.
