A Post-Schuette Course Correction: Same-Sex Marriage and the Rights of Children

Thinking about families instead of/in addition to individuals.  Image from equallyfamily.com.

Thinking about families instead of/in addition to individuals. Image from equallyfamily.com.

Among the short-term harms inflicted by Schuette v. BAMN is renewed uncertainty about the implications of United States v. Windsor for the myriad challenges to state-law marriage bans that are currently pending in the lower courts.

In short, proponents of marriage bans have argued that Windsor merely stands for the proposition that it is impermissible for the federal government to regulate the meaning of marriage; rather, the federal government must defer to the states on this point.  Under this, federalist-centric reading of Windsor, it is entirely permissible for states to decide not to recognize same-sex marriage as an exercise of their sovereignty and primacy in the area of domestic relations.

By contrast, opponents of marriage bans have argued that Windsor stands for the proposition that all such bans, regardless of whether they are enacted on the state or federal level, impermissibly demean the dignity of sexual minorities and their families.

Now proponents of marriage bans are arguing that Schuette bolsters their federalist-centric reading of Windsor, because Schuette reaffirms the right of voters in the states to decide critical policy issues–even those that affect minority rights.

These complicated arguments and the doctrines related to them–federalism, animus, suspect classification status, and fundamental rights analysis–all revolve around the rights of the adults affected by marriage bans.

But, as my colleagues and I have argued elsewhere, there is an alternative factual and legal basis for deciding challenges to state-law bans on same-sex marriage: that such laws violate the rights of children.

At the most basic level, this argument is based on the following, inescapable propositions:

(1) Proponents of marriage bans themselves acknowledge that it benefits children to be part of a stable family unit, and that the institution of marriage promotes this type of stability.

(2) Therefore, as a matter of law as well as a matter of fact, excluding the children of same-sex couples and their parents from the institution of marriage harms those children by depriving them of the benefits of marital stability.

(3) This harm is being inflicted not on the basis of anything the children themselves have done, but in an effort to control the conduct of adults (either to express a preference for heterosexual couples over homosexual couples or, as proponents of such bans have argued, to “incentivize” heterosexual couples to enter the institution of marriage–presumably by making the institution quite literally “exclusive”).

(4) The Supreme Court has repeatedly held that laws punishing children for matters beyond their control, or in an effort to control the conduct of adults, are unconstitutional.


Levy v. Louisiana, 391 U.S. 68 (1968) (holding that discriminating against  children for the actions of others over which they have no control is invidious and impermissible).

Weber v. Aetna Casualty & Surety, 406 U.S. 164 (1972) (holding that condemning a child for the actions of his parents is “illogical and unjust”).

Plyler v. Doe, 457 U.S. 202 (1982) (holding that “[l]egislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of ‘class or caste’ treatment that the Fourteenth Amendment was designed to abolish”).

Palmore v. Sidoti, 466 U.S. 429 (1984) (holding that it was impermissible to determine the interests of the child based on society’s moral disapproval of the parents’ conduct).

For more reading on this issue, see Catherine E. Smith, Equal Protection for Children of Same-Sex Parents., 90 Wash. U. L. Rev. 1589 (2013).

Justice Kennedy acknowledged the harms that marriage bans impose on children in his majority opinion in Windsor, and lower courts have picked up on the theme as well (notice, for example, Judge Lucero’s concerns expressed during the Tenth Circuit oral argument in Kitchen v. Herbert).

In the doctrinal, political and factual morass of the same-sex marriage issue, there is one clear imperative: the need to provide all children with an equal opportunity to thrive in their families.  This principle should guide lower courts as they go forward.




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