When it overturned the federal Defense of Marriage Act, the Supreme Court didn't say gay and lesbian couples have a right to marry. But the decision established that taking away the benefits of such marriages--if they are granted by states--does unjustified harm to those couples. Under DOMA, wrote Kennedy, "same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways," which he went on to list in detail--from healthcare and bankruptcy protection to the right to be buried in veterans' cemeteries.
One of the most important aspects of the decision is what it says about the children of same-sex couples. The defenders of DOMA tried to argue that same-sex marriage is bad for children. But the majority accepted Justice Kennedy's argument (which he raised during oral arguments) that denying marriage hurts the children of these couples. DOMA, wrote Kennedy, "humiliates tens of thousands of children now being raised by same-sex couples."
In an attempt to prevent the overturn of DOMA, a small group of social scientists had--with the backing of conservative foundations--tried to marshal evidence that the parenting of gay and lesbian couples is harmful--or at least might be harmful--to children, and therefore it shouldn't be given the legal stamp of approval implied by the label "marriage." They argued in a brief to the Supreme Court:
With so many significant outstanding questions about whether children develop as well in same-sex households as in opposite-sex households, it remains prudent for government to continue to recognize marriage as a union of a man and a woman, thereby promoting what is known to be an ideal environment for raising children.
Scalia picked it up that line of reasoning in the oral arguments for the Proposition 8 case:
there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.
When the social science evidence is exhaustively examined--which the ASA has done--the facts demonstrate that children fare just as well when raised by same-sex parents ... Unsubstantiated fears regarding same-sex child rearing do not overcome these facts and do not justify upholding DOMA and Proposition 8.
In the face of this consensus, claiming same-sex couples are bad for children is arguably the equivalent of denying climate change, evolution, or the fact that HIV causes AIDS. As long as there are one or two cranks who oppose the consensus, someone can say there is "considerable disagreement." But that didn't hold any sway today. The lack of resonance for this argument is apparent in its absence from the decisions--and the dissents--today. Neither Kennedy nor Scalia and Alito, in their dissents, invoked the argument that the children of gay and lesbian couples suffer harm as a result of their family structure.
Even if there are lingering doubts about whether gay and lesbian families--on average--are "ideal" or not, the Court implicitly ruled that such concerns don't rise to the level needed to overcome the harms caused to gay and lesbian married couples and their children. Once the debate shifted to whether the government has justification to take away something of value from a distinct group, the burden was on the opponents of gay marriage to show some justification for it. And they couldn't.
This does not mean the government has no business regulating family life to protect children. It does mean, though, that the government shouldn't do so by picking family structures. As an essay in Pediatrics argued recently, government should focus on supporting people in diverse family arrangements--and intervening when individual children are harmed or put at risk, regardless of their family structure.
Of course, there is not much hope for changing the minds of those who agree with Tim Roder of the U.S. Conference of Catholic Bishops. He wrote that, "regardless of what the court decides, marriage cannot be redefined. Its meaning cannot be changed." But such appeals to tradition shouldn't be the basis for legal decisions. And today they weren't.
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