Justices Weigh Impact of Same-Sex Marriage on Children

By Mark Walsh — March 26, 2013 4 min read
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The U.S. Supreme Court on Tuesday took up the issue of same-sex marriage, with advocates and the justices expressing various concerns about the effects of such unions on the children of gay parents.

“There are some 40,000 children in California ... [who] live with same-sex parents, and they want their parents to have full recognition and full status,” Justice Anthony M. Kennedy said to the lawyer for the proponents of California’s Proposition 8, a 2008 ballot initiative that removed the right of same-sex couples to marry in that state. “The voice of those children is important in this case, don’t you think?”

Charles J. Cooper, the lawyer for those proponents, said there was no data to support the idea that children of a same-sex couple who could legally marry were incrementally better off than those of domestic partnerships, which California recognizes.

The oral arguments in Hollingsworth v. Perry (Case No. 12-144) did not veer into the so-called education rationale that Proposition 8 proponents put forth at the time of its adoption: that legalizing same-sex marriage would force the public schools to teach that such unions were the same as traditional marriage. That issue animated lower-court proceedings and some of the briefs in the case, which I wrote about in this week’s Education Week in “Same-Sex Marriage Cases Hold Implications for Schools.”

The arguments were dominated by concerns about procedural issues such as whether the private sponsors of Prop 8 had legal standing to defend it since the state of California stopped doing so at an earlier stage. And there were clear indications that the court was not prepared to issue a sweeping decision that would require recognition of same-sex marriages in all 50 states.

“The problem with the case is that you’re really asking ... for us to go into uncharted waters,” Kennedy, who has written the court’s last two major rulings expanding gay rights, said to Theodore B. Olson, the lawyer for two gay California couples who challenged Proposition 8 and won lower-court rulings that it violates the equal-protection clause of the federal Constitution.

Justice Samuel A. Alito Jr. said the parties seem to agree that marriage is “a fundamental building block of society.” But “traditional marriage is thousands of years old” while “same-sex marriage is very new,” he said.

“You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?” Alito said to U.S. Solicitor General Donald B. Verrilli Jr., who was arguing on the side of proponents of same-sex marriage.

Verrilli noted that when the Supreme Court considered Loving v. Virginia, a 1967 case in which it ultimately struck down laws barring interracial marriage, one of the arguments advanced by the state of Virginia was that the social science at the time was uncertain about how biracial children of such marriages would “fare in the world” and thus the state had a rational basis for waiting.

“And I think the court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus,” Verrilli said. “What Proposition 8 does is deny the long-term stabilizing effect that marriage brings. ... There are 37,000 children in same-sex families in California now. Their parents cannot marry and that has effects on them in the here and now. A stabilizing effect is not there. When they go to school, ... they don’t have parents like everybody else’s parents.”

Justice Antonin Scalia, who has expressed his moral disapproval of homosexuality in past opinions, came to the aid of Cooper at one point to say, “If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences [are] of raising a child in a single-sex family, whether that is harmful to the child or not. Some states do not permit adoption by same-sex couples for that reason.”

Cooper later said that “redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adult couples.”

Scalia sought to pin down Olson about when it became unconstitutional “to exclude homosexual couples from marriage. 1791? [When the Bill of Rights was ratified] 1868, when the 14th Amendment was adopted?”

As Olson sought to deflect the question, Scalia pressed harder. “You say it is now unconstitutional. Was it always unconstitional?” the justice said. “It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.”

Olson said the court has never required such a showing before when individual rights were expanded, and he noted that the court’s decision that separate schools for black and white children were unconstitutional had reversed an earlier decision on racial segregation.

Olson later said that “we’ve learned more about sexual orientation and what it means to individuals.” He quoted from an opinion by Justice Ruth Bader Ginsburg in United States v. Virginia, a 1996 decision that struck down the exclusion of women from the Virginia Military Institute.

“It resonates with me,” Olson said. “‘A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.’”

A decision in the case is expected by late June. On Wednesday, the justices will take up United States v. Windsor (No. 12-307), dealing with the constitutionality of the federal Defense of Marriage Act.

Photo: Demonstrators chant outside the Supreme Court in Washington on Tuesday as the court heard arguments on Proposition 8, California’s voter approved ban on same-sex marriage. (Pablo Martinez Monsivais/AP)

A version of this news article first appeared in The School Law Blog.