The U.S. Supreme Court will hear arguments at the end of March in two cases challenging the Defense of Marriage Act (DOMA), and both supporters and opponents of the law have recently filed briefs with the court. Issues of parenting are at the heart of the briefs.
One case, Hollingsworth v. Perry, challenges the federal constitutionality of California’s Proposition 8, which bans marriage for same-sex couples. The second, U.S. v. Windsor, was brought by Edith Windsor of New York after she had to pay estate taxes on an inheritance from her spouse—taxes she would not have had to pay if they were an opposite-sex couple.
In both cases, DOMA supporters argue that the purpose of marriage is to address the tendency of opposite-sex couples to have unplanned children, which leads to hardships for the children and society. Marriage, however, encourages these couples to form stable relationships that create the best environment for raising children. The government therefore has an interest in supporting marriage for opposite-sex couples. Because same-sex couples cannot accidentally reproduce, however, giving marriage rights to them doesn’t serve that same interest.
Additionally, they say, a biological mother and father are the combination best suited to be a child’s caregivers—a situation only possible with opposite-sex couples.
DOMA opponents have a different view. The American Foundation for Equal Rights (AFER), the organization housing the Prop 8 plaintiff’s legal team, notes in their brief that denying same-sex couples the stability of marriage would only make it less likely that children—who include the 40,000 California children being raised by same-sex parents—will be raised in stable households.
And the U.S. Department of Justice (DOJ), in its brief supporting the repeal of DOMA, adds that DOMA “neither promotes responsible opposite-sex parenting nor prevents irresponsible same-sex parenting. . . . If anything, the denial of federal benefits otherwise accorded to married individuals undermines the efforts of same-sex couples to raise their children, hindering rather than advancing any interest in promoting child welfare.”
AFER adds that by linking marriage so closely to biological parenthood, proponents “would leave adoptive parents and infertile couples without any constitutional protection against a State that prohibits them from marrying.”
The DOMA supporters in Windsor also drag up the old argument about gendered role models, saying, “Biological differentiation in the roles of mothers and fathers makes it rational to encourage situations in which children have one of each. . . . It is thus rational for governments to offer special encouragement for family structures in which these differing parental roles can complement each other.”
The DOJ calls this out for the bunk it is. The claim that children benefit more from opposite-sex parents, they say, is “(at best) uninformed speculation.” They cite the medical, psychological, and social-welfare organizations that support gay and lesbian parents, and the studies showing that we are as likely as anyone else to raise well-adjusted kids. They conclude, “No sound basis exists for concluding that same-sex couples who have committed to marriage are anything other than fully capable of responsible parenting and child-rearing.”
AFER goes even further, noting the actual harm that marriage inequality may cause children of same-sex parents: “Proposition 8 . . . places the full force of California’s constitution behind the stigma that gays and lesbians, and their relationships, are not ‘okay,’ that their life commitments ‘are not as highly valued as opposite-sex relationships,’ . . . and that gay and lesbian individuals are different, less worthy, and not equal under the law.”
The result of this, they say, is similar to the result of racially segregated education. Quoting from Brown v. Board of Education, the seminal Supreme Court case that overturned such segregation, they explain that marriage inequality “‘generates a feeling of inferiority’ among gay men and lesbians—and especially their children—’that may affect their hearts and minds in a way unlikely ever to be undone.’”
One senses the glee of the AFER legal team as they note that even the Prop 8 supporters’ principal expert on child development, David Blankenhorn, has testified, “Adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.”
The cases also involve technical legal matters of jurisdiction and standing, which I will not delve into here. If the cases do proceed to the constitutional merits (specifically, whether DOMA violates an individual’s right to equal protection), then the parenting arguments above remain central.
And while not all same-sex couples should be pressured to become parents, I still feel a certain amount of pride that it is 40 years of successful parenting by out same-sex couples that could help pave the way to victory for us all.
Dana Rudolph is the founder and publisher of Mombian (www.mombian.com), an award-winning blog and resource directory for LGBT parents.