Courts Must Protect the Parental Rights of Same-Sex Partners Who Couldn’t Marry or Adopt Pre-Obergefell

Unjust laws shouldn’t be used to separate parents from their children.


By any reasonable definition, Jennifer Zunk is a mother. Zunk helped raise two children from birth. She performed the mundane tasks of parenting—changing diapers, arranging for medical care, preparing meals, and performing other sundry household chores to keep the children in good health. She provided insurance for the children and assisted in planning their education.

The kids call her Mom. The state of Michigan does not.

Zunk is a legal stranger to her children in Michigan. In effect, the state treats her no better than a volunteer nanny. She suffers this indignity because she is not the biological mother of the children, and the children were not born within a marriage of which she was a party. For eight years, Zunk reared the children, ages 6 and 8, with her partner of 15 years, Carin Hopps. Hopps is the biological mother of the children. She was impregnated by in vitro fertilization using a sperm donor.

The root of the injustice began with the state’s unconstitutional laws blocking the couple from marrying or adopting children together. The two women split up in 2015 before the Supreme Court invalidated Michigan’s same-sex marriage ban in Obergefell v. Hodges. Before Obergefell, they were also prohibited from jointly adopting the children: State law prevented partners in nonmarital relationships from both having the status of legal parent.

Before last June’s Obergefell decision, a man or woman in a same-sex relationship in Michigan had no legal recourse to secure parental rights over a partner’s child. Michigan was not alone in denying adoption rights to gay couples. Before Obergefell, only 14 states clearly permitted both partners in a same-sex relationship to be legal parents by state law or judicial practice. Another 14 states did not have a uniform statewide practice, but a number of judges treated same-sex couples who wanted to co-parent favorably in some local courts.

Zunk and other similarly situated mothers have been in Michigan courts asking judges to adopt the equitable parent doctrine. At the most basic level, this doctrine allows courts to recognize the parental bonds that adults without any biological relationship have formed with a child and to treat them like any other parent. Ultimately, however, courts are guided by what is in a child’s best interest.

In the case of Mabry v. Mabry, decided in June, the Michigan appeals court ruled against lesbian nonbiological mothers. They have no rights. The court turned a blind eye to the discrimination imposed on same-sex couples and risked tearing families apart. The consequences for the people trapped in these difficult circumstances are severe. Indeed, there are few more heartbreaking consequences the law can have than letting a loving and fit mother be cut off from her children.

This week, the Michigan Supreme Court refused to take an appeal of the lower court decision, leaving parents like Zunk in agonizing limbo. Her children can be taken away from her at any point without recourse. The state courts swept under the rug the decades of anti-gay animus embedded in state law and showed remarkably little concern for the welfare of the children involved. Barring federal court intervention or remedial legislation, the Michigan courts will sacrifice what may be in children’s best interest because of their parents’ marital status. This absurdity runs contrary to a fundamental principle in American law that children born to unmarried parents cannot be deprived of the benefits accorded to children born to married parents.

The Michigan Supreme Court’s shortsighted refusal to hear the appeal is not the only judicial failure to protect lesbian, gay, and bisexual parents and their children. Earlier this year, the Alabama Supreme Court viciously attacked the family integrity of a fractured same-sex household. A lesbian couple lived together in Alabama between 1995 and 2011. One of the women used assisted reproductive technology and gave birth to three children during this period. Because the nonbiological mother was ineligible to adopt the child under Alabama law, the couple went to Georgia, where they successfully obtained parental rights for the nonbiological mother. After the women ended their relationship, the biological mother asked the Alabama courts to ignore her former partner’s parental status.

The Alabama Supreme Court ruled that the Georgia court had improperly applied Georgia law and refused to recognize the nonbirth mother as a mother. The U.S. Supreme Court wasted little time in correcting the Alabama justices’ bigotry masked as a legal technicality. Thankfully, the Supreme Court summarily reversed the Alabama court and vindicated the adoptive parent’s interests. The Alabama Supreme Court justices’ brazen abuse of power, thumbing their nose at Obergefell, was more shocking to the average court watcher than what happened in Michigan this week. Perhaps this is because of the particular personalities involved and the contemptuous disregard for the rule of law displayed in the Alabama case. However, to the people impacted, the Michigan court’s indecision is no less harmful.

We don’t yet know if the Supreme Court will help men and women like Jennifer Zunk by taking similar action in the Michigan case. Nevertheless, the regrettable display of indifference by the state Supreme Court cannot be allowed to stand. Legislators should do right by Michigan families and fix state law. Legislators can protect the dignity of families by enacting a law allowing courts to recognize estranged same-sex partners who raised children as the parents they have always been. Much like the religious liberty controversies around the nation and the fight for nondiscrimination protections, this case is a stark reminder that the fight for equality continues even in a post-Obergefell world.