The case of Thomas S. v. Robin Y concluded in the Spring of 1995, when Thomas S. withdrew his petition requesting an order of paternity and visitation after the New York Court of Appeals had agreed to review the decision of the Appellate Division. Thus ended four years of litigation in one of the most contentious legal disputes that had arisen to date in the context of a planned lesbian family.
One question dominated the Thomas S. litigation: Can a child be consciously raised, in a deliberately structured family, to know the man who is her biological father without attaching any great significance to the biological connection and without considering him one of her parents? If the answer to that question is yes, then the corollary question was whether existing doctrine could be flexible enough to accord that fact legal significance. I wrote the amicus brief that follows this introductory essay on be-half of three gay and lesbian legal organizations and the two largest associations of lesbian and gay parents in this country. In it, I argued both that a child in a planned lesbian family can define parenthood without regard to biology and that the doctrine of equitable estoppel permits a court to recognize that reality.
The twenty-six day trial of Thomas S. v. Robin Y was a cacophony of disputed facts. Most salient facts, however, are not disputed. Robin Y. and Sandra R. were, in the early 1980s, a lesbian couple who wanted to raise children. First, Sandra R. became pregnant after insemination by the se-men of Jack K., and Cade was born in 1981. Next, Robin Y. became pregnant by the semen of Thomas S., and in 1983 Ry was born. The women had an oral agreement with each donor that he would not seek parental rights to any child conceived, that they would not seek support for their children from him, and that each man would agree to be known to the child when the mothers determined that this was in their child’s best interests. When Ry was three and a half years old, after her five-year-old sister began ask-ing questions about where she came from, Sandra R. and Robin Y. travelled with the children from their home in New York to San Francisco, where both Thomas S. and Jack K. lived, to introduce the children to both men.
This is an excerpt from Kenji Yoshino’s new book, Speak Now: Marriage Equality on Trial. In his book, Professor Yoshino explores the Hollingsworth v. Perry trial, which he calls “one of the most powerful civil rights trials in American history.” Professor Yoshino
Indeed, to the degree that marriage creates, protects, and privileges families-and inevitably defines parenthood-kinship caregiving families who depart from the marital norm continue to suffer from marginalization, exclusion, and stigma.
Overviews the state of arguments in favor of marriage equality at the time, particularly those raised by the community.
Argues that laws that infringe upon human dignity should be subject to strict scrutiny; imagines a decision in Perry in that vein.