Marriage and Children in the Supreme Court

I’m not going to link to general coverage of the Supreme Court argument in Hollingsworth vs. Perry right here–mostly because there is so much of it I don’t even know where to begin.  Go to any news site and it’s probably one of the top stories.   I will link to this interactive site from The Guardian, however, as it allows you to listen to (and read along with) bits of the arguments on particular topics.

Hollingsworth was argued yesterday.  It’s the case challenging California’s Proposition 8.  Proposition 8 amended the CA state constitution to provide that only a man and a woman could marry.   Perry (the original plaintiff in the case)  asserts that this provision of the CA constitution violates the United States Constitution.  Since the US Constitution is the supreme law of our land, any state constitutional provision that violates the US Constitution must be invalid.

In essence, Perry asserted that two provisions of the US Constitution–one guaranteeing equal protection (which you can think of as fair treatment for all groups) and one protecting due process (which you can think of as protecting particular rights, like the right of parents to make decisions regarding their children) require that two women have the same right to marry that a man and a woman would.   I won’t delve into that argument here–again, there is massive coverage about it elsewhere.

One notable thing about the argument yesterday is that the Court got ensnarled in two preliminary and technical questions:  Should the Court be deciding this issue right now and is this the right case to do it in?   Those questions loom large and may well prevent the Court from reaching the merits of the case–which is to say, the Court may dispense with the case on technical grounds without telling us much more than we already know about the right of two women to marry and the US Constitution.

Recently I’ve written about the role that children, child-rearing and parentage play in the marriage cases and even if the Court doesn’t reach these issues it is interesting to look at what questions the justices asked, to get a sense of what concerned them.   You can see that children and concerns about children are front and center.

First off, there is the core argument offered by those defending Proposition 8–that marriage has been, is and must remain focused on procreation which results in two adults raising genetically related children together.   (To read and here the argument, go to the interactive page and click on “procreation.”)  Notice that it has to be procreation rather than child-rearing.  If you say marriage has been, is and must remain focussed on child-rearing, that doesn’t allow you to exclude same-sex couples raising children.   The proponents of Proposition 8 need this argument to be persuasive to the extent they have to justify the exclusion of lesbian and gay male couples from marriage.

The main question here is probably whether the assertion that the purpose of marriage has been and is focussed on procreation.   As Justice Kagan’s questions make clear, lots of people are allowed to marry who are not possibly going to procreate.   The extension of the proponent’s argument strongly suggests that a state could bar women beyond menopause from marrying if it chose to do so.   Additionally, at least as I recall it, historians testified at trial that procreation has never been required for marriage.

This isn’t the only place that children came up at the argument.   The single except from the argument that I heard most frequently replayed on the news since the argument was a musing by Justice Kennedy.   He was considering whether it was the right time to consider a sweeping decision as to marriage.   He began by observing that marriages between people of the same-sex are a fairly new phenomenon, suggesting perhaps that one should wait a bit to see how they play out, but then he continued:

On the other hand, there is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children.  There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

There it is–front and center–the “marriage is good for children and we care about the interests of children” argument.

The last notable invocation of children was by Justice Scalia–who is clearly hostile to the notion of mandating marriage for same-sex couples.   If you click on the topic “adoption” you’ll see/hear his efforts to answer the question of what is the harm in allowing same-sex couples to marry.    He suggests that if same-sex couples could marry then you’d have to allow them to adopt–and what about those children?   Of course, as Justice Ginsberg reminds him, California does allow same-sex couples to adopt as do a substantial number of other states, so this would just take you back to Kennedy’s “what about the voice of the children” point.

But there are other points to raise in response to Justice Scalia’s concern in addition to that made by Justice Ginsberg.   For instance, all states allow single people, including single lesbians and gay men, to adopt.   Does it make any sense at all to allow single lesbians adopt but not lesbian couples?

More broadly, I think Justice Scalia asks us to consider what we know about the capacity of lesbian and gay male couples to raise children.   This is not a topic I can take on right here as I’ve gone on quite long enough.  Suffice it to say that nearly all the studies we have show that these couples do just fine and that no state explicitly bars same-sex couples from adopting.  What they do is bar unmarried couples from adopting, which effectively bars same-sex couples, but takes us back to the main question here, I think.


2 responses to “Marriage and Children in the Supreme Court

  1. It has been interesting to watch it unfold – would be sad if they didn’t weigh in due to a technical decision.

    On another forum the question was raised on whether or not same sex couples adopting would increase the “otherness” felt by adoptees – I think it would be beneficial because the parents would likely have experienced similar.

    One day when you have “spare time” – would you do a post on how why you think (if you do) same sex marriage would trigger the equal protection and or due process clauses under the constitution but not adoptee rights to their original birth certificate? I know either a state supreme court or a court of appeals has already ruled that “adoption” doesn’t fall under the mother’s right to (either or both can’t remember) a parenting decision or privacy. Can try to get source if you don’t have it.

    This post is not showing up in your Recent Posts on the right side…

  2. Thanks for his post Julie. I really think the opponents to same-sex marriage are making a losing argument when they try to tie marriage and procreation together. After all, procreation is something that is available (and legal) outside of marriage. And marriage is not exclusively for the purpose of procreation–after all, many of the benefits that flow from marriage, such as the ability to use your spouse’s health insurance or the right to own property via a tenancy by the entirety, have nothing to do with having kids.

    I just blogged about this issue in the context of infertility.

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