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Published in Print: May 6, 2015, as Marriage Issue Gets Full Airing At High Court

Same-Sex Marriage Issue Gets Full Airing at High Court

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Two very different ways of thinking about child-rearing permeated the U.S. Supreme Court arguments last week over whether the Constitution requires states to license or recognize same-sex marriages.

"When you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences," said John J. Bursch, a special assistant attorney general of Michigan, who defended his state's ban on same-sex marriages, as well as those of Kentucky, Ohio, and Tennessee.

The nationally watched case has potential ramifications for parental and family rights in the K-12 context.

The four states defending their laws before the justices on April 28 in Obergefell v. Hodges (No. 14-556) argue that keeping a traditional definition of marriage ensures that when couples procreate, their children will be born into a stable family unit, and that the promotion of family stability is a legitimate state interest.

But lawyers for those challenging the laws—and for President Barack Obama's administration—stressed that many children currently with same-sex parents do not have the full protection of the law because their states bar joint adoption by two parents of the same sex.

"You have hundreds of thousands of children raised in same-sex households now," U.S. Solicitor General Donald B. Verrilli Jr. said. "And what [the states'] position and [states'] caution argument leads you to is the conclusion that those hundreds of thousands of children don't get the stabilizing structure and the many benefits of marriage."

'Child Outcomes'

Several of the gay couples challenging their states' laws seek to marry or have their marriages from elsewhere recognized so they may jointly adopt children in their household and be sure of equal rights in school decisions.

Those school issues largely went unaired during the 2½ hours of arguments last week. But there were references to the trial held in the Michigan case, in which both sides presented experts who discussed conflicting studies about the educational outcomes of children in same-sex households.

Mary L. Bonauto, a Boston lawyer representing same-sex families, told the justices that "these issues have been aired repeatedly, and there is, as you all have heard, a social science consensus that there's nothing about the sex or sexual orientation of the parent that is going to affect child outcomes."

Justice Anthony M. Kennedy threw a bit of cold water on the idea of weighing such evidence.

"It seems to me … that we should not consult at all the social science on this, because it's too new," he said.

Scalia: Who Should Decide?

The justices appeared as divided as they were two years ago in United States v. Windsor, when they ruled 5-4 to strike down a key provision of the federal Defense of Marriage Act and require the federal government to recognize same-sex marriages from the states that permit them.

Justice Antonin Scalia, who dissented in Windsor and once wrote in a dissent in another gay-rights case that "many Americans do not want persons who openly engage in homosexual conduct … as teachers in their children's schools," was less antagonistic from the bench last week.

"The issue, of course, is not whether there should be same-sex marriage, but who should decide the point," he said.

Justice Elena Kagan, who was in the majority in Windsor, pressed Mr. Bursch on the states' agruments that limiting marriage to opposite-sex couples was to promote responsibility for children.

"This is what I think is difficult for some people with your argument, is that it's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children," she said.

Justice Kennedy wrote the opinion for the majority in Windsor, one in which he said the federal law, known as DOMA, created a differentiation that made same-sex marriages unequal and "humiliates tens of thousands of children now being raised by same-sex couples."

Both sides in the new case view Justice Kennedy as the key vote. Last week, he had concerns for both sides. He noted that opposite-sex marriage has been an institution of societies for thousands of years, while same-sex marriage has been permitted in some states for only about a dozen years.

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"This definition [of opposite-sex marriage] has been with us for millennia," he said to Mr. Bursch. "It's very difficult for the court to say, 'Oh well, we know better.' "

But later, he questioned how same-sex marriage harms "traditional marriage."

"Same-sex couples say, 'Of course, we understand the nobility and the sacredness of the marriage,' " said Justice Kennedy. " 'We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.' "

A decision in the case is expected by late June.

Vol. 34, Issue 29, Page 25

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