Kid Power!

In the marriage equality wars, the rights of children of same-sex parents were rarely invoked despite powerful equal protection law precedent that prohibits the government from penalizing children in order to control adult conduct.  Post-Obergefell, it is time to revisit this under-utilized area of equal protection law to advance the interests of children and expand the meaning of "family."  

The United States has a long history of discrimination against children of unmarried parents.  Non-marital children were viewed as "the child of nobody" and denied many legal and social benefits as a way to show moral disapproval of their parents' decision to have them outside the bonds of marriage.

In 1968, in a ground-breaking decision, the Supreme Court struck down a Louisiana law that embodied this classic government attempt to control adults by penalizing children.  In Levy v. Louisiana, an black unmarried mother died from medical malpractice at a state hospital.  Louisiana denied wrongful death recovery to her five children because "morals and general welfare . . . discouraged bringing children into the world out of wedlock."  The Supreme Court found the law to be a form of invidious discrimination driven by the children's "illegitimate" status.

The issue came up again a few years later in Weber v. Aetna Casualty & Surety Co.  At the time of a father's death from work-related injuries, he was raising marital and non-marital children in the same household.  Louisiana awarded workers' compensation proceeds to his marital children but denied recovery to his non-marital children.  The Supreme Court invalidated the law, holding that a state may not withhold government benefits from a child based on its moral objection to the conduct of the child's parents.  The Weber Court's now oft-quoted statement explains:

The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage.  But visiting this condemnation on the head of an infant is illogical and unjust.  Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens bear some relationship to individual responsibility or wrongdoing.  Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual -- as well as unjust -- way of deterring the parent.

The Supreme Court eventually applied intermediate scrutiny to the disparate treatment of non-marital children. It is this precedent that we relied upon in our amicus brief  in Obergefell to argue that children of same-sex parents had an independent equal protection claim.  We argued that marriage bans denied children of same-sex parents benefits in order to morally object to their same-sex parents' relationships and to incentivize opposite-sex couples to procreate only when married.  This  flew in the face of this well-established equal protection precedent.  This doctrinal argument, however, did not garner much traction.  The Obergefell majority recognized the harms of marriage bans on children of same-sex parents, and acknowledged that they were denied the benefits of marriage "through no fault of their own," but  it did not cite or reference the non-marital status cases. 

Nevertheless, this rich equal protection law precedent offers great promise post-Obergefell for children's rights  advocates.  It also has significant implications for civil rights advocates because the unequal treatment of non-marital children has always disproportionately impacted children of color.  

As Professor Solangel Maldonado explains, children of unmarried parents continue to experience unequal treatment with regard to government benefits, including in the areas of intestate succession, citizenship laws, financial support, and social stigma.

Importantly, post-Obergefell, children of same-sex and opposite-sex unmarried parents have standing to challenge the inequalities they experience because of government attempts to control their parents' conduct, and this matters.   In previous equal protection cases filed by children of opposite-sex couples excluded from government benefits, marriage and biology (i.e. the establishment of paternity) served as the predominant criteria to decide legal parentage. Today, an equal protection claim by a child of an unmarried same-sex couple (who is not biologically related to at least one parent) creates a space for advocates to move the focus away from policing the conduct of adults via marriage and biology (ie. deterring pre-marital sex, encouraging child-rearing within marriage, discouraging same-sex relations and marriage  etc.. ) toward a focus on what should be of paramount concern -- how to level the social and economic playing field for children. 

To some, Obergefell may be viewed as merely an affirmation of conservative values that privilege married people and their kids, a reasonable position to take given the decision's pro-marriage rhetoric.  Yet, viewed from the perspective of children -- in reliance on well-established equal protection law  -- there is cause for more optimism.  Obergefell could serve as a potential building block in expanding the legal and economic protections for children in many types of family configurations and for developing a more robust meaning of "family."  

Thanks to PrawfsBlawg for giving me the opportunity to explore and express my  ideas through blogging!