SCOTUS strikes down DOMA; Impact on Juvenile and Child Welfare Law

Issue August 2013 By Michael Kilkelly

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 adoption.

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 (updating U.S. Gen. Accounting Office, GAO/OGC-97-16 Defense of Marriage Act (1997), available at 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 state.

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 spending measures.

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 national origin.)

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