The Supreme Court’s decision in Obergefell v. Hodges (and three other cases) is obviously a landmark decision of enormous importance to gay individuals and the interests of liberty and equality. As someone whose career has focused on the needs and interests of children, I look at the decision from another perspective. Obergefell also is a landmark in the recognition of the rights and interests of children.
In his opinion, Justice Kennedy cites as one of the major reasons “for protecting the right to marry is that it safeguards children and families…. By giving recognition and legal structure to their parents’ relationship, marriage allows children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…. Marriage also affords the permanency and stability important to children’s best interests…. Without the recognition, stability, and predictability marriage offers … children suffer the stigma of knowing their families are somehow lesser…. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”
This focus on the interests of children living with gay parents is the culmination of a dramatic shift in opinion about the impact on children of being raised by same sex parents. Throughout most of the movement to recognize same sex couple marriage, the major justification used by opponents of marriage was that being raised by same sex parents is harmful to children. States argued that children need opposite sex role models and benefit by being raised by two biological parents. Virtually all courts upholding marriage bans adopted these justifications.
While some of the respondents and amici made similar arguments in Obergefell, these claims were muted and not central to their arguments. In fact, many opponents of marriage conceded that children in same sex couple households would benefit if their parents could marry.
The total switch in the understanding the interests of children is a major factor in the dramatic shift in judicial treatment of same sex couple relationships (it is less than fifteen years since laws criminalizing these relationships were declared unconstitutional in Lawrence v. Texas). How did this change occur?
First, beginning in the 1980s, more and more gay individuals “came out,” entered into relationships, and had children. Over 600,000 children live with same sex parents today. This change meant that more and more people know, and are even related to, children being raised by gay parents. They see how well the children are doing. These parents, children, and grandparents testified in legislative debates; their moving stories clearly have influenced the Justices in this case and in many lower court cases. As Justice Kennedy stated, “Their stories reveal that they seek not to denigrate marriage but rather to live their lives … joined by its bond.”
Second, facilitated by the expansion in the number of same sex couples raising children, there was a major increase in social science research studying the development of children raised by gay and lesbian parents. This research uniformly found that these children’s development mirrored the development of children being raised by heterosexual parents. Interestingly, in much of the early litigation challenging laws barring marriage, proponents of banning marriage introduced testimony by clinicians and social scientists, who claimed that children needed opposite sex parents and that being raised by same sex parents would harm children. However, in recent years, supporters of bans have been unable to find experts willing to take this position in litigation.
Finally, over the past thirty years, many states have allowed, even encouraged, gay individuals to become foster and adoptive parents; this was true of several of the plaintiffs in the current cases. From both research and case examples, it is clear that these children do very well. Moreover, as Justice Kennedy stated, the fact that states allow adoption and foster care by gay couples “…provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.” A state allowing adoption by gay couples can hardly claim that such parenting is bad.
Thus, by the time Obergefell reached the Supreme Court it was clear that preventing same sex couples from marrying harmed children. The dissenters in Obergefell strongly condemn the majority opinion as an act of policy, not based in law. But over forty years ago the Supreme Court, in striking down laws barring children born out of wedlock from inheriting from their fathers, held that it was unconstitutional for states to punish children in order to try to control the behavior of adults. I believe that in the future the majority opinion in Obergefell will be seen as a strong reaffirmation of that constitutional principle.