Kids, gay marriage and the Supreme Court

On April 28, advocates for LGBT rights will press the Supreme Court for a nationwide right to marry for same-sex couples.  By all accounts, the coming Supreme Court battle will look much like the last, with LGBT advocates arguing that the Constitution protects a fundamental right to marry and that gay couples deserve the same rights as their heterosexual counterparts.

Interestingly, the decision could turn less on notions of LGBT equality and more on considerations regarding the plight of children being raised in same-sex households. Although there is no necessary legal connection between the freedom to marry and the wellbeing of the children of same-sex couples, three million LGBT Americans have had a child and as many as six million American children and adults have an LGBT parent. That practical reality has inflected much of the marriage debate.  Thus, the freedom to marry could ultimately turn on a constituency not formally represented in the litigation.

{mosads}The Supreme Court has made this move before. When the Court outlawed segregation in the 1954 case Brown v. Board of Education, it singled out the detrimental effects that the “separate but equal” doctrine had on the psyche of African-American children. When the Court took the unusual step of applying heightened judicial scrutiny to laws discriminating against the undocumented in 1982, it did so in the context of free K-12 public education. And, in 1996, when the Court invalidated laws charging a fee in parental-termination proceedings, it again focused on the need to protect the parent-child relationships.

Children have become central to the marriage debate, too.  In 2013, the Court referenced the “humiliation” tens of thousands of children faced under the Defense of Marriage Act, which denied federal benefits to lawfully married couples in the 12 states that recognized that right back then.  (The number of states has since swelled to 36).  In that case, U.S. v. Windsor, Justice Kennedy focused intently on a law that seemed to hurt children of gay couples by assigning their families a second-class status.

Since Windsor, several lower court judges, including those on the federal courts of appeals, have grounded the freedom to marry in the needs of children. Judge Richard Posner of the Court of Appeals for the Seventh Circuit recently noted that the freedom to marry raises deep questions about “the welfare of American children.” Other federal circuits have done the same.

Those opposing the freedom to marry also make arguments about children. They claim that gay couples do not deserve access to marriage because marriage exists to provide stable environments in which to raise unplanned children, and only a different-sex couple can produce children by accident.  Thus, they conclude, marriage should not be available to gay and lesbian couples, who are unable to procreate on their own.

This “accidental procreation” argument—virtually the only argument the states still make against the freedom to marry for same-sex couples—is very hard to square with the states’ recognition of marriage for different-sex non-procreative couples who are sterile, or past childbearing age, or (in some states) first cousins.

But the argument is especially out of step with a basic and practical reality—namely, those millions of children being raised by same-sex couples. Studies show that the children do just as well as children raised by opposite-sex couples. Regardless—and as a legal matter—it is unfathomable that the law would treat those children differently by assigning their families a lower tier of legal protection.

To be sure, there is no necessary legal link between marriage and childrearing. Many couples that do marry choose not to have children, and many couples, and single people, raise children without marrying. But this point underscores how deeply embedded the right to raise children has become to the fabric of our federal system. Indeed, same-sex couples raise children (biological, adopted, or foster children) in all 50 states.

There are many ways that parents, married or not, can provide material and psychological protection to the their children. But children are our most precious resource, and courts are noting that it is wrong for children of gay parents to have to wonder, in puzzlement, why their parents cannot access the same institutions as friends and neighbors. There is no good reason—legal, moral, or otherwise—to put needless obstacles in the way of child development.  That point may help carry the day for the freedom to marry same-sex couples, too.  As Justice Kennedy stated during oral arguments in another 2013 case, Hollingsworth v. Perry, these kids “want their parents to have full recognition and full status. The voice of those children is important.”

Landau is an associate professor at Fordham Law School.