September 10, 2010 12:47 AM UTC

Six words that changed the same-sex marriage debate

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• by: Voyageur

U.S. District Judge Vaugh Walker’s landmark ruling voiding California’s ban on same-sex marriage has not resulted in a resumption of gay nuptials in the Golden State.  But the judge’s thoughtful, 136-page decision did evoke six words that may finally shift this rancorous debate away from the issue of gay rights and into the far more settled field of family law: The best interests of the child.

Walker’s ruling last month was quickly stayed by a three-judge panel from the Ninth Circuit Court of Appeals in San Francisco, which ruled California’s voter-initiated Proposition 8 would remain in effect while the court considers the constitutionality of the state’s ban on same-sex marriage.  But, by legal standards, the wait won’t be a long one.  The Court of Appeals ordered briefings on the issue this fall and a hearing the week of December 6.

Ultimately, the issue may land before the U.S. Supreme Court – where the decisive vote is likely to lie with swing Justice Anthony Kennedy.  Anticipating just that audience, Walker peppered his decision with numerous quotes from Kennedy’s majority opinion in Lawrence v. Texas, 539 U.S. 558.  In that case, the high courted voted 6-3 to overturn Texas’ sodomy law, and explicitly overturned its previous 1986 Bowers v. Hardwick decision.  In the earlier case, the Supremes upheld a similar Georgia anti-sodomy law because the court at that point did not find a constitutional protection of privacy that extended to homosexual acts.

The sixth vote in support of Lawrence was former Justice Sandra Day O’Connor, who found the Texas anti-sodomy statute a violation of the equal protection clause of the 14th Amendment.  Such laws, including Georgia’s, are often ostensibly written to ban oral or anal sex acts even by married heterosexuals.  In practice, however, they are only enforced against gay people – much as outlandish Old South literacy tests were in practice only used to block black voters.  O’Connor, alas, has since been replaced on the high court by hard-to-starboard Justice Samuel Alito.  That makes Kennedy the all-important fifth vote if the current court is asked to review the California ban on gay marriage in the light of the equal-protection clause.

Judge Walker relied heavily on both the Due Process and Equal Protection clauses of the 14th Amendment in ruling that Proposition 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

Time – and Justice Kennedy – will ultimately tell if Judge’s Walker’s conclusion stands.  But after reviewing the document in full, I was much more impressed by the opinion’s sedulous documentation of the state of modern family life in California, notably the conclusion by the Williams Institute in August, 2008, based on a close study of Census data: “In many ways,

the more than 107,000 same-sex couples living in California are similar to married couples. According to Census 2000, they live throughout the state, are racially and ethnically diverse, have partners who depend upon one another financially, and actively participate in

California’s economy. Census data also show that 18 percent of same-sex couples in California are raising children.”

That percentage of same-sex couples who are raising children is much higher than generally believed by foes of gay marriage – some of whom base their opposition to gay marriage on the supposed fact that gays can’t reproduce.  In fact, many of them have children from a previous heterosexual marriage.  In addition, as Judge Walker’s opinion notes, “California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.”

In absolute terms, that translates into “Same-sex couples in California are raising 37,300 children under the age of 18.”  It also translates into 37,300 reasons to afford same-sex unions the same respect afforded to opposite-sex unions and single-parent families.  Yes, those six words: “The best interests of the child.”

Those six words aren’t actually found in Judge Walker’s ruling.  But their spirit infuses his opinion ruling, especially when he dissects California’s domestic partnership law: “Social epidemiologist Ilan Meyer testified about the harm gays and lesbians have experienced because of Proposition 8. Meyer explained that Proposition 8 stigmatizes gays and lesbians because it informs gays and lesbians that the State of California rejects their relationships as less valuable than opposite-sex relationships. Proposition 8 also provides state endorsement of

private discrimination. According to Meyer, Proposition 8 increases the likelihood of negative mental and physical health outcomes for gays and lesbians.

    The Judge also noted that Psychologist Michael Lamb testified that all available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent.”

    Yet another finding of Walker’s opinion is “A survey of same-sex couples who married in Massachusetts shows that 95 percent of same-sex couples raising children reported that their children had benefitted from the fact that their parents were able to marry.)

Continuing to explore the point, Judge Walker cited an American Psychiatric

Association paper, Support of Legal Recognition of Same-Sex Civil  issued in 2005: “The children of unmarried gay and lesbian parents do not have the same protection that civil marriage affords the children of heterosexual couples.” And, likewise, “The children of unmarried gay and lesbian parents do not have the same protection that civil marriage affords the children of heterosexual couples.”

The Judge goes on to observe that, “To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual

activity and child-bearing and child-rearing to occur outside marriage.

  [Because]  Proponents failed to put forth any credible evidence that married

opposite-sex households are made more stable through Proposition 8… The only rational conclusion in light of the evidence is that Proposition 8 makes it less likely that California children will be raised in stable households.

Most adults are not psychiatrists or social scientists.  But we were all children once, and we all remember how cruel children can be to those they perceive as being different.  Stigmatizing same-sex couples by outlawing their unions or relegating them to an inferior “domestic partnership” status does nothing to help the thousands of children being raised in such families and open encourages taunting and bullying them.

The time has come to stop discussing the same-sex marriage issue in terms of the rights and proclivities of the adults involved and consider it in terms of the best interests of the children in such families.  The Ninth Circuit Court should uphold Judge Walker’s ruling and the U.S. Supreme Court should do likewise.

Reprinted with permission from Bob Ewegen’s column in the Blackacre Journal, published by the Mile High Law Office.

http://www.milehighlawoffice.c…