The innocent victims of Obergefell: same-sex marriage for the sake of children?

• Author: Wardle, Lynn D.
• Position: Symposium on Obergefell v. Hodges

Same-sex marriage was carried into American constitutional law upon the backs of children. The decision of the Supreme Court of the United States (SCOTUS) on June 26, 2015, in Obergefell v. Hodges, (1) interpreting the Constitution of the United States to require all American states to legalize (allow, license, celebrate, recognize, and give full legal respect to) marriages between same-sex couples, clearly implicates the social and legal meaning of marriage in this country. In the long run, the Obergefell decision may also influence how some other countries and international legal institutions define and understand marriage. (2) Perhaps surprisingly, however, in the first ten months after the SCOTUS decision no other nation decided to allow same-sex marriage. (3) Importantly, the justification for the legal redefinition of marriage in Obergefell was based in significant part upon, and also has profound impacts upon, children. Indeed, the idealized, romanticized, emotionally appealing image of the salutary effects that legalizing same-sex marriage would have upon children was an important part of the rationale offered by the Court to justify reinterpreting the Constitution--requiring the universal legalization of same-sex marriage in the United States.

Obergefell also profoundly impacts the well-being of women. Their relational status and roles as wives and mothers have been diluted, if not sacrificed, by the Court for the sake of mandating that all states immediately legalize same-sex marriage. (4) In the long run, the impatient Supreme Court same-sex decision may have significantly altered and diminished the trajectory of women's rights.

However, the redefinition of marriage to include same-sex couples may have its most profound, far-reaching, intergenerational impact upon children, both those who will be raised by same-sex couples as well as all other children in society. Obergefell will also impact parenting, both directly through parenting by same-sex married couples and indirectly through the reconceptualization of the institution of marriage and of its connection to parenting. Undoubtedly, Obergefell weakens the link between marriage and parenting, and it does so at a critical time in American history. The number and ratio of children born and raised out of wedlock are at historically high levels. (5) Obergefell did not improve the situation, but--by diluting the meaning of marriage--has invited the exacerbation of those serious problems.

Moreover, the 5-4 majority opinion of the Court in Obergefell relied heavily upon the claim that children being raised by a homosexual parent and his or her partner are better off, and are more likely to benefit and flourish, if that parent is married to his or her same-sex partner. The benefit to children of same-sex marriage was a major reason to justify the Court's interpretation of the Fourteenth Amendment as requiring all states to legalize same-sex marriage.

This Article suggests, however, that the assumption--that children being raised by a homosexual parent are usually better off, and are more likely to flourish, if that parent is able to marry his or her same-sex partner--is seriously erroneous and contrary to the facts. Furthermore, this Article considers the potential impacts, both negative and positive, of the legalization of same-sex marriage parenting, same-sex parents, and upon their children. This Article also suggests that the potential for grave harm to the directly impacted children of same-sex marriage outweighs the potential for significant benefits. Additionally, this Article indicates that the legalization of same-sex marriage has harmfully and indirectly effected children in our society and will be severely detrimental. The future of children being raised in same-sex adult relationships is also very discouraging.

1. The Obergefell Opinions

   James Obergefell and his partner, John Arthur, lived together for more than two decades as a same-sex couple in Cincinnati, Ohio. (6) Ohio, like most states, did not allow or recognize same-sex marriage. (7) In July 2013, after Mr. Arthur was diagnosed with amyotrophic lateral sclerosis (ALS), Lou Gehrig's disease, the couple made a special, one-day trip in a private jet to Maryland, where same-sex marriage was permitted. (8) They were married in the plane on the tarmac and immediately returned to Ohio, where Mr. Arthur died three months later. (9) In accordance with Ohio law, his death record (1) listed Arthur as "unmarried" at the time of his death, and (2) did not record Obergefell as Arthur's "surviving spouse." (10) Mr. Obergefell filed suit in the U.S. District Court for the Southern District of Ohio against the Director of the Ohio Department of Health, asking the court to declare that the Ohio laws that disallowed recognition of out-of-state same-sex marriages were unconstitutional. Obergefell asked the court to order the state officials to issue death certificates listing Arthur as married, and to declare Obergefell as Arthur's lawful "surviving spouse." (11) The District Court granted those requests, finding that Ohio's refusal to recognize same-sex marriages violated the petitioner's "fundamental right to keep existing marital relationships intact," (12) without any rational justification. (13) However, the U.S. Court of Appeals for the Sixth Circuit reversed, holding that Ohio's limitation of marriage to male-female couples did not violate any constitutional rights of the same-sex couple protected by the Fourteenth Amendment. (14) The Supreme Court of the United States reversed the Sixth Circuit and held that the Constitution requires states to permit and recognize same-sex marriage. (15)

   The majority opinion for five justices of the Supreme Court of the United States in Obergefell v. Hodges was written by Justice Kennedy, who was joined by Justices Ginsberg, Breyer, Kagan, and Sotomayor. Interestingly, the Court interpreted the Constitution's Fourteenth Amendment as requiring all states to permit same-sex couples to marry based upon the premise that children being raised by a homosexual parent are better off, flourishing and thriving, when that parent is able to marry his or her same-sex partner. Justice Kennedy's opinion for the Court emotionally appealed to the potential benefits for children being raised by same-sex partners.

   In doing so, the Court accepted arguments that the petitioner, James Obergefell, and several amici asserted--that children being raised by same-sex parents are better off if their parents are able to marry their partners. Four law professors at the University of Denver, Washburn University, and Georgia State University wrote an amicus brief for unidentified "scholars of constitutional rights of children" arguing that prohibiting same-sex marriage inflicted legal, economic, psychological, and social harms upon children of same-sex couples, and amounted to state "punish[ment of such] children for matters beyond their control." (16) They quoted the Court's opinion in United States v. Windsor, which declared,

   The differentiation [between same-sex and opposite-sex couples] ... humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the 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. (17) They also declared that the Windsor Court had noted the economic suffering caused by the federal Defense of Marriage Act (DOMA) ban on federal recognition of same-sex marriage.

   DOMA brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers' same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. (18) On June 26, 2015, the Supreme Court of the United States announced its 5-4 decision in Obergefell v. Hodges interpreting the Fourteenth Amendment to the Constitution as requiring all states to allow same-sex couples to marry. The majority opinion for the Court was written by Justice Anthony Kennedy, who was joined by all three women justices (Ruth Bader Ginsberg, Sonia Sotomayor, and Elana Kagan) and by Justice Stephen Breyer. It asserted that the Fourteenth Amendment of the Constitution requires states to allow two people of the same sex to marry because the basic freedoms protected by that amendment extend to personal choices that are linked to autonomy and dignity, including the intimate decisions about identity and beliefs, such as marriage. (19)

   The Obergefell majority asserted that four important principles and aspects relating to the right to marry apply to same-sex couples just as well as they apply to male-female couples. First, the right to personal choices about marriage is inherent in the concept of individual autonomy. (20) Second, the fundamental right to marry provides unique, invaluable support to the committed union of two people. (21) Third, the right to marriage provides safeguards for children and families that protect and support the related rights of parenting, procreation and education. (22) Fourth, marriage is the cornerstone of the nation's social order, with no difference between couples of the same or opposite sex. (23) The majority also found support for the constitutional protection of same-sex couples to marry in the Equal Protection Clause of the Fourteenth Amendment (24) and in substantive Due Process. (25) The Court pointed out that new perspectives and social understandings revealed that restricting marriage to male-female couples created injustices not before recognized or questioned. (26) The Court reiterated that the right to marriage is a fundamental freedom of the person and states cannot deprive same-sex persons of that right and freedom. (27) It noted...