It’s been a great few days for marriage equality, with an Arkansas state judge and a federal judge in Idaho striking down those states’ bans on marriage for same-sex couples. As with similar rulings in other states, the welfare of children weighed heavily in the judges’ decisions.
Judge Chris Piazza of Arkansas wrote Friday, in part (my bold throughout ):
Even if it were rational for the state to speculate that children raised by opposite-sex couples are better off than children raised by same-sex couples, there is no rational relationship between the Arkansas same-sex marriage bans and the this goal because Arkansas’s marriage laws do not prevent same-sex couples from having children. The only effect the bans have on children is harming those children of same-sex couples who are denied the protection and stability of parents who are legally married.
He also cited the previous case that struck down the ban on unmarried couples adopting children — an interesting example of parental rights leading the way towards marriage rights. Baby carriage before marriage, in this case:
The Arkansas Supreme Court applied a heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex couples from adopting children. The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection.
In Idaho, U.S. Magistrate Judge Candy Dale wrote today:
The Defendants [of the marriage ban] make abundantly clear that marriage is a life-affirming institution — something to be encouraged because it provides stability not only for couples, but also for children. . . .
She addresses Governor Butch Otter’s contention that the state’s ban on marriage laws “advance the State’s interest in protecting children”:
Although the Court agrees that the State has a compelling interest in maximizing child welfare, the link between the interest in protecting children and Idaho’s Marriage Laws is so attenuated that it is not rational, let alone exceedingly persuasive. . . .
The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. But the Court need not — even if it could at the summary judgment stage — resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage. That link is faulty for at least four reasons.
The reasons basically boil down to (my paraphrase): “we don’t require different-sex couples to procreate in order to marry, so we shouldn’t require the same of same-sex couples.” In her last reason, however, she notes that marriage can provide benefits for all children of married parents, not just those of different-sex parents:
Finally, and most importantly, the Governor’s child welfare rationales disregard the welfare of children with same-sex parents. . . . It is also clear that “[m]arriage can yield important benefits for children and families, including state and federal legal protections, economic resources, family stability, and social legitimacy. These benefits are equally advantageous for children and adolescents in families headed by same-sex and different-sex couples.” . . . No Defendant suggests that the State’s child welfare interest does not extend to the children in these households.
Then, in a big flourish:
Idaho’s Marriage Laws fail to advance the State’s interest because they withhold legal, financial, and social benefits from the very group they purportedly protect — children. . . . Failing to shield Idaho’s children in any rational way, Idaho’s Marriage Laws fall on the sword they wield against same-sex couples and their families.
Let’s hear it for Idaho! Potatoes for everyone!
