Same-Sex Marriage and the Rights of Children


My colleagues (Catherine Smith, Tanya Washington, Lauren Fontana) and I were incredibly happy about the outcome in Obergefell v. Hodges, and especially pleased that the Court cited our amicus brief in its decision.  Specifically, the Court cited our brief for the proposition that, among myriad other benefits, “Marriage also affords the permanency and stability important to children’s best interests.”

To fully appreciate the significance of this recognition, we must remember the arguments that were advanced in defense of marriage bans when the legal battle for marriage equality first began.  In particular, proponents of marriage bans cited dubious social science in support of the contention that opposite-sex couples provided the “ideal child rearing environment” for children, while same-sex couples were not only inferior as parents, but perhaps harmful to children by virtue of the nature of their relationship.

At this stage in the debate, children were treated as pawns in an argument grounded in moral disapproval and homophobia.

One of the key goals of our first brief, filed in United States v. Windsor, was to make the children of same-sex couples visible in a fundamentally different and more positive way.  To that end, we emphasized Supreme Court precedent that recognized the interest children had in equal protection of the laws.  While there are different ways of interpreting these cases, we contend that, when we think about how discriminatory laws curtail the ability of children to develop as full-fledged, equal citizens, we have a clearer view of the long-term impact of discriminatory laws on all of us.  Thus, this insight, born from a study of the child-centered cases, can be deployed to better understand the negative effects of discrimination against adults.

This is the same argument we advanced in Obergefell, and it appeared to resonate with the Court.

For further discussion of this concept, see Catherine E. Smith and Susannah W. Pollvogt, Children as Proto-Citizens: Equal Protection, Citizenship, and Lessons from the Child-Centered Cases, 48 U.C. Davis L. Rev. 655 (2014).

There are many pros and many cons to the Obergefell decision, which will be unpacked over the next days, weeks, months, and years.  But one unmitigated good is that the Court had the wisdom to recognize that all children deserve the protection and stability that the institution of marriage is designed to afford.  Taking this principle to its logical conclusion, we hope to ultimately extend that protection to children even where their parents are not in a marital relationship.


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