What the Latest Marriage Equality Ruling Says About Same-Sex Parents

Mombian.com, October 7, 2014

What a week! Same-sex couples can now marry in Idaho and Nevada, adding to the boatload of states that have gained marriage equality in the past few days. Let’s look at what the latest court decision said about children.

A three-judge panel of the 9th Federal Circuit Court of Appeals ruled yesterday that it is unconstitutional to prevent same-sex couples from marrying in Idaho and Nevada. Their decision should soon extend to all of the other states within the circuit that don’t yet have marriage equality — Alaska, Arizona, and Montana.

Judge Stephen Reinhardt, who wrote the opinion, was not as amusingly acerbic as Judge Richard Posner in the 7th Circuit, but did come up with this zinger, responding to a statement by Idaho Governor Butch Otter:

[Governor Otter] also states … that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.

Reinhardt, like all federal judges who have ruled for marriage equality since June 2013, leaned heavily on the U.S. Supreme Court’s Windsor decision in addressing the states’ argument that marriage should be restricted to different-sex couples because only they can create children, and children do better when raised with a mother and a father:

In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada materially harm and demean same-sex couples and their children. Denying children resources and stigmatizing their families on this basis is “illogical and unjust.” It is counterproductive, and it is unconstitutional….

To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in “family values.” In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.

OK, he was a little acerbic:

Defendants’ essential contention is that bans on same-sex marriage promote the welfare of children, by encouraging good parenting in stable opposite-sex families…. Defendants have presented no evidence of any such effect. Indeed, they cannot even explain the manner in which, as they predict, children of opposite-sex couples will be harmed. Their other contentions are equally without merit.

He is clear that married same-sex couples are not the cause of more children being raised outside of marriage:

True, an increasing number of children are now born and raised outside of marriage, a development that may well be undesirable. But that trend began apace well before the advent of same-sex marriage and has been driven by entirely different social and legal developments….

The defendants’ assertion that excluding same-sex couples from marriage will do anything to reverse these trends is utterly unsubstantiated.

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Anthony Brown

Anthony Brown

Attorney and Advocate at Time For Families
Who am I? On the deepest level, I am blessed. I have an amazing partner, who I have known since 1989 and been married to since 2004. I am the donor dad of two beautiful daughters who have two moms who are equally amazing. My husband and I have expanded our family through surrogacy and have a seven-year old son. I have had three careers (acting, massage therapy and the law) and I am still discovering myself. I am the Board Chair of Men Having Babies. The one thing I know for sure is that life is about trusting your instincts. Family is an instinct.
Anthony Brown