On June 26, 2013, the United States
Supreme Court invalidated the Defense of Marriage Act in United
States v. Windsor. The decision struck down a key section of DOMA,
which defined marriage as between a man and a woman for the purpose
of federal law.
The impact of the United States Supreme Court decision holding
that the Defense of Marriage Act is unconstitutional, will be felt
in juvenile and child welfare law in several areas where the
federal government has impact on the states. This article will
address two primary areas, having to do with child welfare and
Reports issued after DOMA's enactment revealed 1,138 federal laws
in which marital status is a factor. U.S. Gov. Accountability
Office, GAO-04-353R Defense of Marriage Act (2004), available at
www.gao.gov/new.items/d04353r.pdf (updating U.S. Gen. Accounting
Office, GAO/OGC-97-16 Defense of Marriage Act (1997), available at
www.gao.gov/archive/1997/og97016.pdf.) Some of those laws have a
direct impact on child welfare and adoption, as the federal
government requires the states to implement policies as a condition
of federal funding.
The invalidation of DOMA will have a primary beneficial effect on
the children born to or adopted by a same-sex couple. All of the
federal laws that apply to the family will now treat the children
of same-sex married couples the same as all other children. The
U.S. Supreme Court reaffirmed the principle that the equal
protection clause does not permit disparate treatment of children
based on the circumstances of their birth. As the court explained
in Weber v. Aetna Casualty & Surety Co.:
"[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. . .
. [N]o child is responsible for his birth and penalizing the
illegitimate child is an ineffectual - as well as an unjust - way
of deterring the parent." 406 U.S. 164, 175 (1972).
The recent DOMA decision protects the well-being of children. DOMA
deprives the children of married same-sex couples of "governmental
services and benefits desirable, if not necessary, to their
physical and emotional well-being and development." Pedersen v.
Office of Pers. Mgmt., 881 F. Supp. 2d 294, 338 (D. Conn.
2012). All children, whether conceived intentionally or
accidentally, through unassisted biological procreation or through
other means, benefit from federal recognition of their parents'
marriages and the supports that come with it.
In the child welfare context, all federal laws and rules will now
apply equally to all children and all marriages. All parents of
children will be recognized as having rights and responsibilities,
and all child welfare laws will be applied equally to all children
and parents. Of course, the application of particular state laws
and rules in child welfare will have to be litigated now in each
The other main area where the DOMA decision will have an effect,
is on adoption. Adoptive parents have all the same rights and
obligations as any other legal parent, including biological legal
parents. Not only are adopted children eligible for many federal
benefits, the federal government also actively supports adoption
and assisted reproduction through a variety of laws, policies and
Federal law seeks to help parents - biological and non-biological
- care for their children. Federal laws and policies care about
children who are created, not about how they are created. The
invalidation of DOMA will allow federal adoption law to continue to
treat all adopted children and all adoptive parents equally. It may
also serve to increase the number of adults available to adopt
children from the child welfare system.
Myriad federal programs provide benefits to children. These
federal programs draw upon state determinations of parentage that
are not necessarily based on a biological relationship between
parent and child. In addition, when these federal programs
explicitly define "child," they routinely include and extend
benefits to adopted children. The federal government also actively
supports adoption and assisted reproduction through a variety of
laws, policies and spending measures. See, e.g., 42 U.S.C.
§ 670 (foster care and adoption assistance); Adoption and Safe
Families Act of 1997, Pub. L. No. 105-89, H.R. 867 (codified in
scattered sections of 42 U.S.C.) (imposing timelines on states for
moving children from foster care to adoption); Multiethnic
Placement Act of 1994, Pub. L. No. 103-382, H.R. 6 (codified in
scattered sections of 42 U.S.C.) (prohibiting states from delaying
or denying adoptive placements on the basis of race, color or
Federal benefits extend to children of married and unmarried
couples who adopt. The federal tax code promotes adoption and
assisted reproduction, including by creating subsidies for adoptive
parents of children with special needs, tax credits for
adoption-related expenses and exclusions for employer-paid adoption
expenses; by allowing the costs of in vitro fertilization to be
deducted from income; and by defining an adopted child or a child
conceived using assisted reproduction as dependents for purposes of
the dependency exemptions. See 26 U.S.C. § 23 (formerly 26 U.S.C. §
36C); 26 U.S.C. §§ 137, 151-152; INTERNAL REV. SERV., PUBL'N. 502:
MEDICAL AND DENTAL EXPENSES 8 (2012). The DOMA decision ensures
that these adoption benefits will be extended to the children of
same-sex couples and their parents.
Michael F. Kilkelly is the chair of the MBA's Juvenile and Child
Welfare section. He is an attorney in private practice in Malden,
concentrating in the areas of domestic relations and juvenile
delinquency law. ¦
DOMA Damages Same-Sex Families and Their Children, by Mary L.
Bonauto, Family Advocate, American Bar Association, Vol. 32, No. 3
(Winter 2010), pages 10-17.
Brief of Amici Curiae Family and Child Welfare Law Professors
Addressing the Merits and in Support of Respondents