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Thursday, July 09, 2015

Obergefell and the Interests of Children

Thanks to Prawfsblawg for inviting me to guest blog.  I am excited to share my thoughts on Obergefell, which cited the amicus brief on the Constitutional Rights of Children that I co-authored with Lauren Fontana (Denver), Susannah Pollvogt (Washburn), and Tanya Washington (Georgia State).  I am new to blogging and will "just keep it real," as advised by my eleven-year-old daughter, veteran blogger, Zoe Smith-Holladay.

It is historic that Obergefell interpreted the fundamental right to marry to include same-sex couples and recognized that marriage bans can place undue harm on the children of these couples. Although the decision may be viewed as an affirmation of conservative values that privilege married people, it also lays the foundation for a more expansive interpretation of family.  

One of the four principles the majority advanced in support of protecting the right to marry is that marriage safeguards children and families, explaining:

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry.  Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate children of same-sex couples.

The Court's focus on the impact on children of same-sex couples caused by marriage bans raises many questions, including:

  • What were, in fact, the harms to children of same-sex couples?
  • Does the decision simply privilege children whose same-sex parents marry?
  • Can the decision be leveraged to level the playing field for children of unmarried parents (same-sex and opposite-sex parents) or children in 'non-traditional' family configurations?
  • Do children who face government-sanctioned discrimination because of their parents' conduct or status have independent constitutional claims?
  • Is there untapped legal precedent on the constitutional rights of children that may serve to advance a more expansive civil rights agenda?

My next posts will explore these questions and Obergefell's potential to be a catalyst for a more expansive transformation of family values and of the interests of children.

Posted by Catherine Smith on July 9, 2015 at 11:40 AM | Permalink

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