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The US Supreme Court, same-sex marriage, and children

During the decades of debates over marriage equality in the United States, opponents centered much of their advocacy on the purported need to maintain marriage as an exclusively heterosexual institution in order to promote the well-being of children. It was therefore fascinating to see the well-being of children play a crucial role in the US Supreme Court’s ruling on the constitutionality of same-sex marriage bans in Obergefell v. Hodges, albeit not in the way opponents of marriage equality hoped.

As a constitutional matter, Obergefell is grounded in the fundamental right to marry, a right that the Court recognized in several late twentieth-century rulings, including its decision in Loving v. Virginia striking down interracial marriage bans. The Court in those cases didn’t grapple extensively with the meaning or purpose of marriage. But if there is one thing that the marriage equality movement engendered, it was repeated and wide-ranging debates over why society privileges marital relationships. It was therefore not surprising that Justice Kennedy in his majority opinion in Obergefell elaborated extensively on why the fundamental right to marry exists to begin with. One of the reasons, Kennedy explained, is to safeguard children by providing them with permanency, stability, and material benefits.

Opponents of marriage equality repeatedly claim that married mothers and fathers who are biologically related to their children constitute the optimal family form in promoting the well-being of children. Opponents then contend, with varying degrees of explicitness, that children raised by lesbians and gay men are vulnerable to greater risks of harm. Justice Kennedy, however, turned that claim on its head by pointing out that it was same-sex marriage bans which placed the hundreds of thousands of children raised by same-sex couples at risk of losing the permanency, stability, and material benefits that can accompany marriage. In other words, the Supreme Court concluded that allowing lesbians and gay men to marry individuals of their choice promotes rather than undermines child welfare.

SCOTUS DOMA 53. By JoshuaMHoover. 26 June 2013. CC-BY-2.0 via Flickr.
SCOTUS DOMA 53. By JoshuaMHoover. 26 June 2013. CC BY-ND 2.0 via Flickr.

About a decade ago, same-sex marriage opponents developed a new claim, one that focused on the well-being of the children of heterosexual parents. This claim, known as the “responsible procreation” argument, contended that marriages by same-sex couples delinked marriage from procreation, making it more likely that heterosexuals will have children outside of marriage, to the detriment of those children. If marriage is understood as having nothing to do with procreation, it was argued, straight couples would have less of an incentive to have children within marriage. Several courts, including the New York Court of Appeals, relied on this argument to uphold the constitutionality of same-sex marriage bans.

But the Supreme Court rejected such odd reasoning. As Kennedy explained, heterosexuals weigh many factors in deciding whether to marry or have children. But no heterosexual couple decides to do either depending on whether the government allows same-sex couples to marry.

It is undoubtedly the case that before the campaign for marriage equality started in earnest about twenty years ago, most people assumed both that marriage was meant only for different-sex couples and that it was better for children to be raised by heterosexuals than by LGBT people. Those assumptions were there until the end. One of the dissenting justices in Obergefell claimed it was reasonable to believe that “states formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.”

But one of the main purposes of the American Constitution’s provisions protecting rights to liberty and equality is to subject these types of assumptions to empirical and logical scrutiny. The decades of constitutional litigation over marriage equality engendered countless studies, hearings and trials, briefs, position papers, and judicial rulings that examined the relationship between marriage exclusion and child well-being. At the end of the day, proponents of that exclusion were unable to establish that keeping marriage as an exclusively heterosexual institution benefits either the children of heterosexuals or those of lesbians and gay men. And that is one of the main reasons why they lost before the Supreme Court.

Featured image: US Supreme Court in Spring with Fountain. © markphariss via iStock.

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