The case comes out of Washington State. Sue Carvin and Page Britain were lesbians living together since 1989. Their baby, L., was born in 1995, using an at-home artificial insemination kit and some sperm donated from their gay friend. Page Britain carried L. and gave birth, but Sue Carvin became the stay-at-home mom while Page worked to support the family. Their child called Sue "Mama" and Page "Mommy."
For several years they were a model of lesbian co-parenting. But Page grew upset that Sue didn't earn much money, and Sue was hurt that Page didn't recognize the value of her sacrifice. They split up when L. was seven years old. Ever since, they've been fighting for custody in the courts. Or sort of. Because the courts couldn't agree on whether Sue Carvin even had the right to fight for custody. She nurtured the child, but she wasn't the biological mother. So what was she, in the eyes of the law?
Washington State decided that Sue Carvin has the right to argue she's a "de facto" parent. This new classification can apply to any non-biological parental figure — and it specifically mentions stepparents. So while the case appears on first glance to be about gay-and-lesbian rights, it may have a far broader impact.
Consider that for every 1,000 couples with children in the United States, only two of those couples are same-sex-oriented. Meanwhile, thanks to the huge number of second marriages, a third of all Americans are part of a stepfamily. The question "Are they real parents?" applies not just to gays and lesbians — it applies to every stepfamily. That's what the kids are testing when they angrily scream, "You're not my real mommy!" And when the biological mother hears that her son has been spanked by his stepmother, she wonders, "She can't do that, can she?"
While we closely monitor how gay rights are granted and taken away, we pay almost no attention to the fact that stepparents are in the same legal limbo. Despite being ubiquitous, step-relationships are rarely recognized by the law. In most states, stepparents are considered "legal strangers" even if they have cared for and supported a stepchild for years. They have almost no official responsibility and barely any rights.
What kind of rights are they deprived of? Some are remarkably banal. For instance a stepparent can't sign a child's school report card or field-trip permission form. Others are significant. A stepfather can't include his stepdaughter on his family health insurance plan, for example. And she can't inherit from him when he dies.
In the last few years, state family courts have tried to accommodate the stepparents and stepchildren who appear before them, without granting so much that it subtracts rights from a biological parent. In Colorado a stepparent can now sign the form that allows a minor to apply for a driver's license. And in Oregon, a stepparent can petition the courts for visitation of former stepchildren, if that marriage has ended. In Arkansas, it's even theoretically possible now for a stepparent to win custody over a biological parent. But in each state it's a different story, and many states are still in denial.
So a stepmother can take a month off work to care for her sick stepson, thanks to the federal law on Family Leave. But if she has to take her stepson to the emergency room, state law might prevent her from authorizing medical treatment. And if her son ends up dying due to hospital negligence, she can't sue.
The legal field is sitting on a huge time bomb. One-third of Americans are just one unfortunate circumstance away from ending up in court demanding their rights — where they will be told that those relationships aren't real, and don't count.
The U.S. Supreme Court has never been pressed to rule whether a stepparent is a real parent, and if so, under what conditions. But when it declined to review Britain v. Carvin, Washington State's test for "de facto" parents instantly became a model for other states to replicate. Through a case everyone thought was about gay rights, stepfamilies just opened the door to the recognition they truly deserve.
Over the next 10 years, there will be an explosion of cases testing just how "real" stepparents are. This will never get the attention surrounding same-sex cases, because stepfamilies are just as populous in red states as blue, and no politician can use it to their advantage. Nor are stepfamilies subjected to the same degree of prejudice. Stepparents might be vilified, but they are vilified one at a time — not as a class. However, the systematic bias against them is very real.
Just as the law prefers parents to be one male and one female, the law prefers to limit the number of parents to two. Maybe this is because two is the number of people it takes to make a child in the first place. Maybe it's because all the government forms are already printed with two signature lines. Maybe it's because two worked so well for us for so long. But that hasn't been the reality for several decades, and it's time for the law to catch up.