Same-sex couples who have committed to marriage are fully capable of responsible parenting and child-rearing.
By Melanie Nathan Feb. 22, 2013
President Obama’s administration urged the Supreme Court to strike down the Defense of Marriage Act in a brief filed Friday, declaring the 1996 federal law to be unconstitutional.
Arguing that Section 3 of DOMA, which forbids federal recognition of same-sex marriage, violates the Constitution, Solicitor General Donald Verrilli writes that DOMA also deserves heightened scrutiny because of the history of discrimination faced by gays and lesbians.
“Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection,” the brief reads. “The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”
On the issue of heightened scrutiny, the brief states thats “gay and lesbian people have long suffered discrimination in employment, immigration, criminal violence, child custody, police enforcement, voter referenda, and other contexts.”
On the issue of procreation and child rearing, thebrief read as follows:-
The House Report identified “responsible procreation and child-rearing” not as a separate rationale for Section 3 of DOMA, but as a basis for Congress’s general interest in defending “the institution of traditional, heterosexual marriage.”
E.g. House Report 14 (“Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.”);
see also BLAGB r. 44-49.
Even accepting this blinkered understanding of the moral and emotional foundations of marriage, see Turner v. Safley 482 U.S. 78, 95-96 (1987), Section 3 does not substantially further any such interest.
First, no sound basis exists for concluding that same-sex couples who have committed to marriage are anything other than fully capable of responsible parenting and child-rearing. To the contrary, many leading medical, psychological, and social-welfare organizations have issued policy statements opposing restrictions on gay and lesbian parenting based on their conclusions, supported by numerous scientific studies that children raised by gay and lesbian parents are as well adjusted as children raised by heterosexual parents.
Against this weight of expert authority, BLAG offers (Br. 48) only what it calls the “[c]ommon sense” notion that children benefit more from opposite-sex parents than from same-sex parents. That is (at best) uninformed speculation, and cannot satisfy heightened scrutiny.
Consequently, even assuming Section 3 had the effect of encouraging opposite-sex parenting at the expense of same-sex parenting (but see pp. 43-44, there would be no adequate interest in doing so.
Second, any debate over the relative merits of same-sex parenting is beside the point: Section 3neither promotes responsible opposite-sex parenting nor prevents irresponsible same-sex parenting. The legislative record contains no evidence that denying federal benefits to same-sex couples legally married under state law in any way serves to encourage responsible procreation or child-rearing, whether by opposite-sex or same-sex couples; and it is hard to imagine what such evidence would be. Congress did express the view that marriage plays an “irreplaceable role” in child-rearing. House Report 14. But it defies reason to suggest that Section 3 makes it anymore likely that heterosexual individuals will marry or raise children together. See Supp. App. 29a (“DOMA does not affect in any way” these “incentives for heterosexual couples.”).
Nor does it deprive gay and lesbian individuals married under state law of the ability to raise children. See Massachusetts 682 F.3dat 14 (“DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.”). If anything, the denial of federal benefits otherwise accorded to married individuals undermines the efforts of same-sex couples to raise their children, hindering rather than advancing any interest in promoting child welfare.
BLAG defends (Br. 44-47) the procreation/child-rearing rationale primarily on the ground that the traditional definition of marriage rationally relates to the government’s interest in addressing “unplanned and unintended offspring”—a problem unique to opposite-sex relationships. But Section 3 bears no relationship to that interest at all. If a state elects to limit marriage to opposite-sex couples because they alone present a risk of unintended offspring, Section 3does not disturb that choice. Conversely, if a state elects to permit same-sex couples to marry, Section 3does not preclude that choice either. Section 3 there-fore does not further the end of providing a special institution at the state level to address unintended offspring. And Section 3 thus can bear no rational, let alone substantial, connection to any governmental interest in responsible parenting. See Supp. App. 30a(“Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.”) (citing Massachusetts 682 F.3d at 14-15;Pet. App. 18a-19a;
Pedersen v. OPM No. 3:10-cv-1750,2012 WL 3113883, at *40-43 (D. Conn. July 31, 2012))