We Gotta Legalize Gay Marriage For The Kids, Too, Justice Anthony Kennedy's Opinion Reads In Part
One of the prevailing counter-narratives to legalizing same-sex marriage has long been, "Won't anyone think of the children?" This argument emerged, of course, during Obergefell v. Hodges, the Supreme Court case that just legalized same-sex marriage nationwide, with both sides weighing in on the consequences of having two fathers or two mothers instead of the "traditional" nuclear family. What Justice Anthony Kennedy eventually found, of course, is that there's little evidence, if any, showing that the children of same-sex couples are negatively impacted in any way.
But let's first take a look at those children. After all, as Kennedy wrote in his opinion affirming same-sex marriage, "the right to marry... safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education." This is why the states have worked so damn hard to protect the institution of marriage — that loving home where children can ideally be nurtured and protected.
As Kennedy noted, families in America are not homogenous. There are families with biological children and families with adopted children, for example, and both deserve — and receive — the same protections, dignity, and love. Now that most states allow same-sex couples to adopt, there's obviously a growing number of same-sex couples, married and unmarried, who are providing for adopted children. (There are also many, many gay couples who have biological children.) "This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families," Kennedy wrote.
Still, the so-called conservative values crowd has tried to paint same-sex relationships as harmful, psychologically distressful, and even child abuse. Kennedy, who repeatedly acknowledged that same-sex couples were respecting, not mocking, the institution of marriage, didn't buy it for several reasons.
First, there's the issue that while procreation may be a part of marriage, it is not the only reason to marry — just ask childless-by-choice couples. Kennedy writes:
An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.
But the crux of it, truly, is that denying same-sex couples the right to marry would essentially deny their children the right to be protected from not only the state, but also from society. Kennedy wrote that children of same-sex couples may be worse off if their parents were unmarried, as their family unit would be treated as less than by the state and the community:
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 the children of same-sex couples.
Kennedy also pointed to a brief of amici curiae, Scholars of the Constitutional Rights of Children, submitted on behalf of the plaintiffs. The authors of the brief looked into our same-sex marriage bans could possibly punish the children of gay couples by depriving them of certain legal and societal benefits:
The children of same-sex couples are identically situated to the children of opposite-sex couples in terms of their need for and entitlement to the family-supporting rights and benefits provided by the institution of marriage. By providing these benefits to one group of children while denying them to another, state marriage bans impose permanent class distinctions between these two groups of children, in essence penalizing the children of same-sex couples merely because their parents are of the same sex.
"The states’ characterization of marriage bans as child-protective measures that promote 'responsible procreation and optimal child-rearing' is at odds with the adverse impact of the legislation on all children with gay or lesbian parents," the scholars wrote. They added that these bans "stigmatize the families of which these children are a part, and, by extension, to stigmatize these children."In short, legalize same-sex marriage: Do it for the kids.
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