The role of children in same-sex marriage cases

A US District Court judge in Michigan became the latest in an unbroken string to strike down a state’s ban on same-sex marriage as unconstitutional because it violated the Fourteenth Amendment of the US Constitution’s equal protections clause.

The ruling was issued late last Friday evening and the judge did not issue a stay which meant that couples could get married immediately. Some county clerks decided to open their offices on Saturday and issue special licenses and as a result some couples are now already married. The state immediately appealed to a higher court that issuing licenses prior to final adjudication would create uncertainty as to the legal status of marriages contracted in the interim and as expected, the 6th U.S. Circuit Court of Appeals court issued a temporary stay later on Saturday until it hears more on Wednesday

One of the interesting things about reading the actual rulings by judges is that you get to appreciate the background of each case. In particular, because the people bringing the suit have to show standing, they need to explain how they suffered direct harm by the government’s action. In this case the two women, who were both nurses and foster parents who had separately adopted special-needs children, sued that the state’s ban on same-sex marriage prevented them from having joint custody of all their children and thus deprived them and their children of a benefit that was available to opposite-sex couples.

You can read judge Bernard Friedman’s ruling here. He applied the ‘rational basis’ standard of review (p.3) where the state has to show that it has a rational basis for an action. Because of the particular circumstances of this case, much of the argument was about whether the prohibition was justified based on the presumed negative effects on children of having same-sex parents.

There was plenty of expert testimony from both sides but the judge clearly found the expert witnesses on the women’s side far more credible and rejected the state’s case that the children of same-sex couples suffered harm, saying of one of the state’s expert witness’s testimony that it was “entirely unbelievable and not worthy of serious consideration” (p. 13).

After concluding that there was no convincing evidence that children of same-sex couples suffered any harm, he went on to say that in any case deciding who could get married based on the presumed benefits (or lack thereof) to children was hard to justify.

Fourth, the state defendants’ position suffers from a glaring inconsistency. Even assuming that children raised by same-sex couples fare worse than children raised by heterosexual married couples, the state defendants fail to explain why Michigan law does not similarly exclude certain classes of heterosexual couples from marrying whose children persistently have had “sub-optimal” developmental outcomes. According to Rosenfeld’s study, children raised by suburban residents academically outperformed those children raised by rural and urban residents. Likewise, “middle class and poor families are ‘sub-optimal’ compared to well-off families, and couples with less formal education are “sub-optimal” compared to couples with more formal education.” A child’s racial background is another predictive indicator of future success, as the study showed that “the probability of making good progress through school is greater in the U.S. for children of Asian descent than for children of all other racial groups.” Taking the state defendants’ position to its logical conclusion, the empirical evidence at hand should require that only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other heterosexual couples. Obviously the state has not adopted this policy and with good reason. The absurdity of such a requirement is self-evident. Optimal academic outcomes for children cannot logically dictate which groups may marry. (p. 23, my emphasis)

The judge went on to say that last summer’s Supreme Court ruling in Windsor v. United States that struck down DOMA and the 1967 ruling in the Loving v. Virginia case that outlawed bans on inter-racial marriages “stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence.” (p. 29).

He further went on to reject the state’s ‘will of the people’ argument, where the state had argued that since the ban had been passed by a popular referendum, that somehow gave it added legitimacy and required greater deference. The judge said that some things are simply outside the scope of popular votes and quoted (p. 29) US Supreme Court justice Robert Jackson, who said back in 1943:

[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The Catholic bishop of Kalamazoo is, of course, not happy, saying that “With the stroke of a pen, the meaning of marriage, one of society’s most sacred institutions and the very foundation of the family, has been redefined in our state”. He tried as usual to avoid sounding intolerant: “While our faith teaches us to treat individuals with same-sex attraction with respect, compassion and sensitivity, we also are called to defend the divine institution of marriage between one man and one woman.”

Sorry bishop, you can’t have it both ways. When you deny same-sex couples the right to marry, you are not treating them with “respect, compassion and sensitivity’ in any concrete way. You are just paying lip-service to those values.


  1. kathleenmcnamara says

    The thing I never understood about people opposing same sex marriage, with whatever arguments they make, i.e. “What about the children?,” is this:
    The couple is already together and they are already raising their children together as a family. Even if there were credible evidence that raising children with two mothers or two fathers was somehow worse than a “traditional family”, preventing these same sex couples from getting married doesn’t “help” these children; it doesn’t put them into a home with a married heterosexual couple. Banning same sex marriage doesn’t help anything, all it does is hurt same sex couples and their families.

  2. doublereed says

    @1 kathleenmcnamara

    The explanation is actually quite simple. They don’t care. They hate gay people. They hate families that accept gay people. They want to remove gay people from society through whatever way possible. They perfectly understand that the “What about the children?” is completely dishonest and they are actively harming children.

    They don’t care.

  3. kathleenmcnamara says

    @2 doublereed

    Fair enough, I suppose. I’m not doubting their hatred of gay people, I just don’t get what they hope to accomplish, or why anyone actually buys into their arguments.

  4. wilsim says

    @3 kathleenmcnamara

    They hope to accomplish persecution of LGBT, that is all it is. They hate, they need to express it, so they do.
    Nobody buys into their arguments. They hate, so they rationalize their hate, and when they have to talk to people outside their normal circles they have to have some words to express a reason they want to enshrine their hate into law, and those words cannot be religious (at least in the USA).

    Or at least that is really is simple and stupid as it all seems to me.

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