Concerns about the well-being of the children of gay parents took a surprisingly significant role in last week’s historic U.S. Supreme Court arguments over same-sex marriage.
“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 during the March 26 arguments over 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.”
But reflecting his own, as well as the court’s, divisions over the issue, Justice Kennedy also said: “There’s substance to the point that sociological information [about the effects of same-sex marriage] is new. We have five years of information to weigh against 2,000 years of history or more.”
The oral arguments in Hollingsworth v. Perry (Case No. 12-144)—one of two cases on the subject heard by the court last week—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 had animated lower-court proceedings and some of the briefs in the case. (“School Angles Seen in Same-Sex-Marriage Cases,” March 27, 2013.)
‘Uncharted Waters’
The arguments last week suggested that the high 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,” Justice 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 U.S. Constitution.
Justice Samuel A. Alito Jr. said proponents of same-sex marriage “want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet.”
In separate arguments on March 27 in United States v. Windsor (No. 12-307), the justices weighed a challenge to the federal Defense of Marriage Act, the 1996 law that defines marriage for federal purposes as only between a man and a woman. There were fewer references to the children of same-sex parents in that case.
In the Proposition 8 case, U.S. Solicitor General Donald B. Verrilli Jr., arguing on the side of same-sex-marriage proponents, noted that when the Supreme Court considered Loving v. Virginia, a 1967 decision that struck down laws barring interracial marriage, one argument advanced by Virginia was that the social science at the time was uncertain about how the children of such marriages would fare in the world, and that the state thus had a rational basis for waiting to recognize interracial unions.
“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,” Mr. Verrilli said.
“What Proposition 8 does is deny the long-term stabilizing effect that marriage brings,” he said, and when the children of same-sex couples 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, said redefining marriage to include same-sex couples would require states to permit adoption by same-sex couples.
“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,” said Justice Scalia, who insisted he was taking no position on the issue but suggesting the possibility of “deleterious effects.”
Abandoning Tradition
Charles J. Cooper, the lawyer for the opponents of same-sex marriage, 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.”
Mr. Olson said that the nation in recent years has “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: “A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.”
Decisions in both cases are expected by late June.
