“The Talk About Children (And More) at the Supreme Court”: Nancy Polikoff

of “beyond marriage” fame, blogs:

Justice Roberts then brought up an issue I have consistently raised in these blog pages and elsewhere.  He called in an “internal inconsistency” that plaintiffs say children of same-sex couples are doing great and so there is no problem extending marriage to same-sex couples and they say that Prop 8 harms children because their parents can’t marry.  I have always found this problematic.  It is why we should not be arguing for marriage saying our children are harmed if we can’t marry.  We have said for decades now that children are not harmed being raised by gay and lesbian parents or same-sex couples.  We cite study after study that the children turn out fine, or at least not worse than their peers with heterosexual parents.  We say this constantly.  We cite many studies.  So, how, exactly can this be true if at the same time the children are worse off than their peers with heterosexual parents because those parents can marry?  It gives me no pleasure to have an obvious opponent of same-sex marriage raise this point from the bench.  It’s just an obvious point that advocates boxed themselves into when they decided to conflate the well-being of children with marriage.  Verrilli answered by saying marriage was stabilizing, but you see the problem.  If children needs that stabilizing factor (if it is even true for same-sex couples…), then you would expect some harm to them to be visible in the years of research about their well-being.  But there is no such evidence of harm.  So why do they need marriage?  The answer is…they don’t, unless you point to specific legal consequences.  But almost all of those flow from legal parentage, not marriage.  We never should have gone the route of justifying access to marriage based on the well-being of children. But here we are.

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