I wanted to add a few thoughts to the post I wrote yesterday. It’s about a new Oregon case and you might be better off going to read it. I won’t summarize in any detail.
Here, however, are a couple of key points. It appears that Oregon recognizes that it is problematic to treat same-sex and different-sex couples differently. They are all couples, in the view of the law, and so if you’re going to provide some different sex couples with a legal privilege, you have to provide same-sex couples with the same privilege. This looks like a simple (and to me, unobjectionable) equality statement.
Now there is a specific privilege that is at issue in the case here: In particular, OR allows the spouse in a different sex couple (who would be a husband) to have an automatic path to legal parenthood under some circumstances. It must therefore allow the spouse in a same-sex couple (who would be a wife) to that same automatic path to legal parenthood under the same circumstances. (The circumstances are that the child is conceived using third party sperm and the not-to-be-pregnant spouse consents to the process.) Again, a simple statement of an equality doctrine–you cannot treat some married couples differently from other married couples. The fact that the statute speaks of “husband” doesn’t stand in the way.
But this simple statement about equality sits on a base on unequal treatment, albeit one that cuts along a different line. The automatic path to parenthood is available only to married couples. At least as understood by the appellate court there, unmarried couples (be they same-sex or different-sex) are not entitled to this automatic path to legal parenthood. (After all, the statute says “husband”–which seems to mean “married.”)
Given that there is different treatment for married and unmarried couples, the courts must confront a dilemma, though one that will only exist for a limited time. Historically same-sex couples were not allowed to marry in OR, or if they did marry, the state did not recognize their marriages. Thus, all same-sex couples were necessarily unmarried couples and therefore no same-sex couples had access the presumptive path to legal parenthood. In Shineovich (an earlier OR case) the OR Supreme Court recognized this problem and solved it by extending the presumptive path to the couple there. Essentially the court concluded that the same-sex couple in that case was (for whatever reason) enough like a married couple so that it had to be treated like a married couple.
Madrone, the new case, raises a related question: When you are looking at a necessarily unmarried same-sex couple, how do you tell if they are enough like a married different-sex couple to warrant extension of the privilege? Because if they are really more like an unmarried different-sex couple, then the equality principle denies them access to the presumptive path. The court concludes that the way to do this is to decide whether this particular couple would have gotten married had marriage been available. This this is a very specific question and requires the court to imagine an alternative universe in which marriage was an option. (You can see that this is a problem only in a limited time frame. Now same-sex couples can marry in OR, just like different-sex couples, and so an unmarried same-sex couple must be a couple that chose not to marry.)
What you can see from this discussion is that the case here implicates not only the equality principle with regard to same and different sex couples but also the absence of an equality principle for married and unmarried couples. If the Madrone’s wouldn’t have gotten married, then they aren’t entitled to the presumptive path because it would be fine to deprive a different-sex couple access to the path under those facts.
Which leads me to my main question: Why should the legal parentage of a person–be they male or female–turn on state recognition of the legal relationship between the adults? And in some way, Shineovich is the case I want to point to. That couple was not married. Yet they were entitled to the presumption.
It seems to me that the key is understanding why the presumption operates at all. If we understand why it operates as it does, then we can perhaps figure out which couples should be entitled to invoke it. And there are at least two different answers two the “why” question. One is why, as a matter of history, it operates as it does. But I think it is more important to think about why, as a matter of policy, it does what it does.
Maybe that’s tomorrow’s topic.