Equal protection for children of same-sex parents.

• Author: Smith, Catherine E.
• Position: III. The Legal Exclusion of Children of Same-Sex Parents Warrants Intermediate Scrutiny B. Children of Same-Sex Parents as a Subset of Nonmarital Children through Conclusion, with footnotes, p. 1615-1641

2. Children of Same-Sex Parents As a Subset of Nonmarital Children

   Today, children of same-sex parents are in a similar position to children of unmarried opposite-sex parents forty years ago. They exercise no control over their parents' conduct, yet, because of the state's imputation of immorality upon them, they suffer concrete economic injuries.

   1. Children of Same-Sex Parents Have No Control Over Their Parents ' Conduct or Their Status of Birth

      Classifications that deny children of same-sex parents government benefits do so based on an immutable characteristic--their status as children of gays and lesbians. (163) Although most lawyers are well aware of the concept of immutability in race-based equal protection cases, a persistent strand of immutability principles, even if less well known, exists in the nonmarital status cases. The Weber Court, citing a number of cases including Brown v. Board of Education, explained that "imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing." (164) The Court expressed its view that it could not prevent the social disapproval of children born outside of marriage; it could, however, "strike down discriminatory laws relating to status of birth." (165) The early immutability concepts in the non-marital status cases also influenced the subsequent equal protection law. A year later, in a plurality opinion, the Supreme Court relied on Weber's immutability rationales to argue for heightened scrutiny for gender classifications. (166)

      Many in the United States believe that same-sex relationships are immoral and run counter to traditional family values. One of the primary contentions is that sexual orientation is a choice, not an immutable characteristic. This Article does not wade into this debate; it is undeniable, however, that children of gays and lesbians have no control over their parents' conduct (or the rest of the country's response to their parents' conduct). They can do nothing about the reality that their biological (or adopted) parent and that parent's same-sex partner (the child's nonbiological parent) decided to have a child.

      A central tenet of modern equal protection law is that it is unfair to discriminate against an individual because of a trait or characteristic derived at birth that cannot be changed. (167) The nonmarital status cases repeatedly recognized this core principle, and it has also been invoked in other contexts to prohibit discrimination against children. (168) In Plyler v. Doe, school-age children of Mexican origin brought an equal protection challenge to a Texas statute that withheld state funds from local school districts that chose to enroll and educate children not "legally admitted to the United States. (169) In striking down the provision, the Supreme Court made a distinction between individuals illegally in the United States as a result of their own conduct and the children of these individuals. The Court explained that these children "can affect neither their parents conduct nor their own undocumented status," and that to legislate against them "does not comport with fundamental conceptions of justice." (170) As with nonmarital status children and undocumented children, children of same-sex parents are born into or become members of the gay- or lesbian-headed household through no individual action on their part.

   2. Imputing Immorality to the Child to Deny Basic Safety Nets Is Impermissible

      Children of same-sex parents are denied basic safety nets because "no-protection" states morally disagree with their parents' gay or lesbian relationships and proceed to impose their moral judgment on the children those relationships produce.

      Moral justifications invoked as a shield to insulate the government's disparate treatment of nonmarital child litigants have been routinely rejected as unrelated to the underlying purpose of the government statutes in question and clearly driven by invidious discrimination. (171) The degree of malice and bigotry directed toward LGBT people and their families in "no-protection" states is nothing short of alarming. Bob Barr, the Republican Congressman from Georgia, for example, sponsored the antigay Defense of Marriage Act, saying: "The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundation of our society, the family unit." (172) In the neighboring state of Alabama, Roy Moore, then Chief Justice of the state's supreme court, openly advocated that the death penalty should be leveraged as a way to keep children away from LGBT people, even their parents. In a lengthy concurrence in a custody case involving a lesbian mother, Moore asserted that "[t]he State carries the power of the sword, that is, the power to prohibit [homosexual] conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle." (173)

      Importantly, it's not just in states in the Deep South where such antigay bias is spoken so freely and forcefully. The discussion occurs at a national level as well. Indeed, the two organizations that lead the "traditional family" movement on the national stage--the American Family Association (AFA) and the Family Research Council (FRC)--are so virulent in their homophobia that they have both been deemed "anti-gay groups." (174) In 2010, Bryan Fischer, AFA director of issue analysis for government and public policy, claimed that "[hjomosexuality gave us Adolph Hitler, and homosexuals in the military gave us the Brown Shirts, the Nazi war machine and six million dead Jews." (175) That same year, FRC President Tony Perkins wrote: "While activists like to claim that pedophilia is a completely distinct orientation from homosexuality, evidence shows a disproportionate overlap between the two .... It is a homosexual problem." (176)

      Even in more comparatively moderate tones, government actors consistently deny gays and lesbians the right to marry in reliance on "traditional" family values, such as a preference for raising children within a marriage, exposing children to dual-gender parenting roles, and encouraging procreation. These arguments, as the next section explains, are also driven by moral values about families. While opponents of gay marriage might successfully employ those arguments about traditional families to deny gays and lesbians the right to marry, those opponents cannot deploy those arguments to deny children of gays and lesbians rights equal to those enjoyed by their similarly situated peers.

      The Weber Court explained this clearly in a now oft-quoted statement:

      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 should 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 an unjust--way of deterring the parent. (177) The nonmarital status cases consistently held that children cannot be punished based on moral disagreement with their parents' conduct or relationships.

   3. Children of Same-Sex Parents Suffer Concrete Economic Injuries

      The children of same-sex parents suffer concrete economic (and non-economic) losses. Persistent themes in the nonmarital status cases are that children should be protected and our basic system of benefits and property rights is designed to afford basic government safety nets to children when necessary, like in the event of family transitions or crisis. (178) The Levy Court asked a series of questions that went directly to this concern in the children's claim for wrongful death recovery: "[w]hen the child's claim of damage for loss of his mother is in issue, why, in terms of 'equal protection,' should the tortfeasors go free merely because the child is illegitimate? Why should the illegitimate child be denied rights merely because of his birth out of wedlock?" (179) The court also inquired that if a nonmarital child is "subject to all the responsibilities of a citizen ... [h]ow under our constitutional regime can he be denied correlative rights which other citizens enjoy?" (180) Weber also raised such concerns about the economic interest of children seeking workers' compensation proceeds after the death of their father, noting that "[a]n unacknowledged illegitimate child may suffer as much from the loss of a parent as a child born within wedlock or an illegitimate later acknowledged." (181)

      Similarly, in New Jersey Welfare Rights Organization v. Cahill, (182) the Supreme Court turned to the economic injury to children as its justification for applying heightened review. New Jersey's "Assistance to the Families of the Working Poor" program limited benefits to households comprised of opposite-sex married couples with "legitimate" children. (183) The court found the law unconstitutional, because the benefits under the welfare program were as "indispensable to the health and well-being of illegitimate children as to those who are legitimate." (184) The very notion that some children are worthy of economic safety nets and others are not because of their status as children of "immoral" unmarried parents struck at the heart of prohibited disparate treatment under the equal protection of the laws. (185)

      As Section II detailed, children of same-sex parents in "no-protection" states are denied access to a host of state (and federal) benefits. (186) The benefits that children of same-sex parents are denied places them at a social and economic disadvantage in relation to their opposite-sex...