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.
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.”
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.
And, of course, same- and different-sex parents are really more alike than different:
The reason only opposite-sex couples should be allowed to marry, we are told by the defendants, is that they “possess the unique ability to create new life.” But both same-sex and opposite-sex couples can and do produce children biologically related only to one member of the couple, via assisted reproductive technology or otherwise. And both same-sex and opposite-sex couples adopt children, belying the notion that the two groups necessarily differ as to their biological connection to the children they rear.
As for the argument that preventing us from marrying will encourage different-sex couples to have children within marriage:
As the sex-based exclusion of same-sex couples from marrying does not in any way enhance the marriage benefits available to opposite-sex couples, that exclusion does not substantially advance—or advance at all—the state interest in inducing opposite-sex couples to raise their biological children within a stable marriage.
The same-sex marriage prohibitions seek to preserve an outmoded, sex-role-based vision of the marriage institution.
What struck me most about this ruling, however, was Reinhardt’s emphasis that much of the resistance to same-sex parents and marriage for same-sex couples is really about gender biases. He gives this excellent point more space than any other judge I can recall. Some highlights:
The gender stereotyping at the core of the same-sex marriage prohibitions clarifies that those laws affect men and women in basically the same way as … a wide range of laws and policies that have been viewed consistently as discrimination based on sex…. The same-sex marriage prohibitions seek to preserve an outmoded, sex-role-based vision of the marriage institution….
Historically, marriage was a profoundly unequal institution, one that imposed distinctly different rights and obligations on men and women…. Notably, although sex was strongly presumed to be an essential part of marriage, the ability to procreate was generally not….
In short, a combination of constitutional sex-discrimination adjudication, legislative changes, and social and cultural transformation has, in a sense, already rendered contemporary marriage “genderless,” to use the phrase favored by the defendants. For, as a result of these transformative social, legislative, and doctrinal developments, “[g]ender no longer forms an essential part of marriage; marriage under law is a union of equals.” As a result, in the states that currently ban same-sex marriage, the legal norms that currently govern the institution of marriage are “genderless” in every respect except the requirement that would-be spouses be of different genders….
It bears noting that the social exclusion and state discrimination against lesbian, gay, bisexual, and transgender people reflects, in large part, disapproval of their nonconformity with gender-based expectations….
The same-sex marriage prohibitions, in other words, impose harms on sexual orientation and gender identity minorities precisely because they impose and enforce gender-normative behavior.
He adds that it “causes concrete harm to women and to men throughout our society” to ban same-sex couples from marriage based on the mistaken understanding that because of their gender, men and women each play different roles in the lives of their children. He therefore concludes the ruling: “In my view, the same-sex marriage bans belie that understanding, and, for that reason as well, cannot stand.”
And with that, another 11,260 children being raised by same-sex couples now live in states where their parents can marry — including in Vegas by an Elvis impersonator, if that’s their thing.