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Wednesday, July 22, 2015

How Marriage Bans Harmed Children of Same-Sex Parents

In Obergefell v. Hodges, state defendants argued that marriage bans and non-recognition laws (hereinafter "marriage bans") were justified  because they were good for children.  Put another way, excluding same-sex couples from marriage was beneficial to children of opposite-sex couples.  As explained in a previous post, marriage ban proponents' critical error was their failure to recognize that gays and lesbians have children too.

In an amicus brief on the Constitutional Rights of Children filed in Obergefell, Lauren Fontana, Susannah Pollvogt, Tanya Washington and I analyzed marriage bans from the perspective of children of same-sex couples.  The exclusion of these kids from the states' own characterizations of the benefits of marriage flew in the face of logic and equal protection law.  As to the harms, we explained:

Marriage bans harm children because they: (1) foreclose the central legal route to family formation; (2) categorically void existing legal parent-child relationships incident to out-of-state marriages; (3) deny children of same-sex couples economic right and benefits and other legal protections; and (4) inflict psychological and stigmatic harm.

I offer a brief summary of each below:

Marriage bans foreclosed family formation.  In most states, both parties to a heterosexual marriage are presumed to be the legal parent of a child born into the marriage, even if the child is not biologically related to both parents.  For same-sex couples in marriage ban states, biology (or adoption) established a legal relationship between a child and one of her same-sex parents; however, bans precluded the formation of a legal relationship between the child and her other non-biological (or non-adoptive) parent.  In many marriage ban states leading up to Obergefell, it was impossible for a child of same-sex parents to have a legal relationship with her non-biological (non-adoptive) same-sex parent; they were permanent legal strangers.

As the Obergefell majority recognized in describing the legal conundrum of Michigan plaintiffs April DeBoer and Jayne Rowse who were raising three adopted children, "Michigan permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent."

Marriage bans voided existing legal parent-child relationships.  In addition, non-recognition states created uncertainty for a child of same-sex parents when her family traveled or moved from one state to another by voiding existing legal relationships with one parent (and the parents' relationship to each other).  In a marriage equality state, a child's relationship to both her parents would be legally recognized; in a non-recognition state, the child's relationship to her non-biological (non-adoptive) parent would be void.

Marriage Bans denied children economic rights and benefits.  In marriage ban states, because the child and her non-biological parent were legal strangers, she could be denied countless benefits in relation to the parent, including workers compensation benefits, state health insurance, civil service benefits, social security benefits, inheritance, and wrongful death proceeds.  Marriage bans also deprived the child and her parents of the settled expectation that they would be treated as a family when unexpected events happen in their lives.  Once again, in discussing the DeBoer and Rowse family, the Obergefell majority got it:  "if an emergency were to arise, schools and hospitals may treat the  three children as if they had only one parent.  And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the child she had not been permitted to adopt."  Further, if the same-sex parents separated or divorced, the absence of a legal relationship created uncertainty for a child and her non-biological (non-adoptive) parent's standing as a legal parent with rights and responsibilities.

Marriage Bans Inflicted Psychological Harm.  States excluded same-sex couples and their children from the rights and benefits incidental to marriage to symbolically express the superiority of opposite-sex unions as "optimal."  The reciprocal message broadcasted that same-sex unions and the children within those unions were inferior and unworthy of recognition or the rights and benefits of the institution.  Many same-sex couples and their children internalized this state-sanctioned message of inferiority.

Marriage bans were driven by purported state concerns for what is good for only some children, however, children of sam-sex couples could not be treated unequally in the absence of a valid justification.  The blatant unequal treatment of similarly situated children reveals the real reason that state defendants sought to exclude gays and lesbians from the institution of marriage -- to control adult conduct.   In my next post, I will discuss how penalizing children to regulate adult conduct goes against well-established equal protection law.

For greater detail on how state marriage bans harmed the children of same-sex couples, go herehere and here.  For an analysis of how DOMA harmed children you can find our amicus brief in Windsor here.




Posted by Catherine Smith on July 22, 2015 at 09:45 AM | Permalink


"In a marriage equality state, a child's relationship to both her parents would be legally recognized; in a non-recognition state, the child's relationship to her non-biological (non-adoptive) parent would be void."

Parental relationships not being recognized = not getting child preventive services protections even without factoring into the equation that reasonable policy decisions (involving potentially denying constitutional rights to parents to see their child) are involved in the choices there?

I don't quite see how the two cases are equivalent. Here is a key excerpt from the dissent:

" To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit."

If a parental relationship to a child is "void" if you move to a certain state, no, they are not able to "freely" make their home "where they please ... in peace" unless voiding relationships with children is some trivial burden there. This was a major point made in respect to the second question. There was a major barrier to freedom of travel, of "locomotion," which even by his lights is a "liberty."

How voiding parental rights is being "left alone" is unclear to me. If he doesn't want to recognize this as a "liberty," it is at least a "privilege or immunity," which he was willing to recognize broadly in the past. And, protecting one's parental rights to children was a key absence in slavery.

Thomas' general view of liberty is too narrow in general, but I'm not even worrying about that here.

Posted by: Joe | Jul 22, 2015 3:01:47 PM

Well, Thomas would say that no one has a substantive due process right to "economic rights and benefits," nor to benefits and licenses the deprivation of which cause children psychological harm, nor to benefits and licenses the deprivation of which foreclose family formation, etc. For which he would - reasonably enough, I think - cite DeShaney, a case where the Court held there wasn't a due process right to competent provision of a protective service, which the state was already voluntarily providing, the deprivation of which caused a child to suffer brain damage so severe that he was permanently institutionalized.

Posted by: Asher | Jul 22, 2015 12:14:17 PM

Yes. Various lower court opinions dealt with these things in more detail than Obergefell. What say you dissenting justices, including Thomas who noted how little really same sex couples' "liberty" were negatively affected.

Posted by: Joe | Jul 22, 2015 10:51:43 AM

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