"Teachable moments": The use of child-centered arguments in the same-sex marriage debate

California Law Review

Volumn 98, Issue 1, 2010, Pages 121-158

  Isaacson, Ruth Butterfield ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77952730130     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (314)

1. Jill Tucker, Field Trip to Wedding "A Teachable Moment, " S.F. CHRON., Oct. 11, 2008, at A1.
2. Id.
3. Id.
4. See Online Comments to Tucker article, supra note 1, available at http://www.sfgate.com/cgi-bin/article/comments/view?f=/c/a/2008/10/11/ MNFG13FlVG.DTL ("This story, like others with a civil-rights-victory (sic) focus, makes my heart open in joy .... This story... foster[s] deeper convictions of hope and equality and peace.").
5. See John Diaz, A Lesson in Political Naiveté, S.F. CHRON., Oct. 14, 2008, at B6. After describing himself as "someone who regards marriage-equality laws as a basic civil right," Diaz commented that the field trip "hand[ed] powerful ammunition to the Yes on 8 Campaign, which had been trying to scare Californians with warnings that its defeat would lead to the indoctrination of kindergartners.... This outing was just a terrible judgment in every regard."
6. Id.
7. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
8. Opponents, fearing the California Supreme Court would uphold same-sex marriage, had already drafted the language and gathered signatures for Proposition 8 well before the decision was released. Cheryl Wetzstein, Signatures Pledged for California Marriage Vote, WASH. TIMES, Apr. 25, 2008, at A6.
9. ELECTIONS DIV., CAL. SEC'Y OF STATE, OFFICIAL VOTER GUIDE (2008), http://voterguide.sos.ca.gov/past/2008/general.
10. A poll taken in mid-October by the Public Policy Institute of California showed 52 percent of voters opposed and 44 percent of voters supported Proposition 8. Mark DiCamillo, Why Prop. 8 Confounded Pre-Election Pollsters, S.F. CHRON., NOV. 10, 2008, at B5.
11. A poll taken around the same time by SurveyUSA indicated 45 percent of voters opposed and 48 percent of voters supported Proposition 8. See California Prop 8 Remains a Fierce Fight That Could Be Decided Either Way by Handful of Votes, SURVEY USA, Oct. 17, 2008, http://www.surveyusa.com/client/PollReport. aspx?g=0d4fd538-5834-4c18-98c8-6e58da254976.
12. See Diaz, supra note 5;
13. see also Erin Allday, Newsom Becomes Campaign Tool for Prop. 8 Backers, S.F. CHRON., Oct. 14, 2008, at A1 (noting that political insiders say images of children attending a same-sex wedding play right into the hands of the proponents of a same-sex marriage ban).
14. ProtectMarriage.com, Why Proposition 8, http://www.protectmarriage.com/ about/why (last visited Mar. 12, 2009) ("[Legalizing gay marriage] has far-reaching consequences. For example, because public schools are already required to teach the role of marriage in society as part of the curriculum, schools will now be required to teach students that gay marriage is the same as traditional marriage, starting with kindergarteners.").
15. Tucker, supra note 1.
16. ProtectMarriage.com, Finally the Truth (television advertisement), http://www.protect marriage.com/video (last visited Aug. 26, 2009).
17. Id.
18. Id.
19. ELECTIONS DIV., CAL. SEC'Y OF STATE, STATEMENT OF VOTE: NOVEMBER 2008 GENERAL ELECTION 12 (2008), http://www.sos.ca.gov/elections/sov/2008-general/ sov-complete.pdf.
20. -388 U.S. 1 (1967).
21. See infra Section I.A.
22. See infra Section I.B.
23. See discussion of the "Yes on 8" campaign ads, infra text accompanying notes 206-29.
24. -388 U.S. 1 (1967).
25. -798 N.E.2d 941 (Mass. 2003).
26. -855 N.E.2d 1 (N.Y. 2006).
27. -183 P.3d 384 (Cal. 2008), superseded by state constitutional amendment, CAL. CONST. art. I, § 7.5,
28. as recognized in Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
29. During the drafting of this Comment, the California Supreme Court issued its opinion in Strauss v. Horton, which upheld Proposition 8 (formally entitled the Marriage Protection Act) and invalidated same-sex marriages sought after Proposition 8 passed, but also found that samesex marriages performed before Proposition 8 was adopted were valid. 207 P.3d at 610-11. The court's decision in Strauss is worth noting for its impact on the status of same-sex marriage in California, but because the Strauss holding turned largely on statutory interpretation and the scope of constitutional revisions, a substantive discussion of the opinion is unwarranted for the purposes of this Comment.
30. -198 P.2d 17 (Cal. 1948).
31. See infra text accompanying notes 58-63.
32. -388 U.S. 1 (1967).
33. Carlos Ball, The Blurring of the Lines: Children and Bans on Interracial Unions and Same-Sex Marriages, 76 FORDHAM L. REV. 2733, 2739 (2008).
34. Id. at 2739-40. Specifically, the law's aim was to "prevent... that abominable mixture and spurious issue which hereafter may encrease [sic] in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawfull [sic] accompanying with one another." Id. at 2740
35. (quoting 3 THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA 86 (William Waller Hening ed., 1823)).
36. Ball, supra note 29, at 2741.
37. Id.
38. Id. at 2740-41. White women who gave birth to interracial children out of wedlock faced stiff church fines that, if they could not afford to pay, would be satisfied through a five-year service indenture, auctioned off by the church to the highest bidder.
39. Id. at 2742. The Virginia statute, as originally written, did not directly punish white men who had interracial children with black women.
40. Id. at 2743.
41. Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L.Q. 611, 661 (2004). The proposed amendment, written by Democratic Congressman Seaborn Roddenbery (Georgia), stated that "Intermarriage between negroes or persons of color and Caucasian [sic]... within the United States... is forever prohibited . . . ."
42. Id. at app. 74 (quoting H.R.J. Res. 368, 62d Cong. (1912)). Roddenbery purported to define "negro" and "person of color" as any individual who had "any trace of African or Negro blood."
43. Id. at 630.
44. Id. at 661 (quoting 49 CONG. REC. 503 (1912)).
45. For further discussion of race-based fraud and its connection to racial identities and social boundaries within the family, see Angela Onwuachi-Willig, A Beautiful Lie: Exploring Rhinelander v. Rhinelander as a Formative Lesson on Race, Identity, Marriage and Family, 95 CALIF. L. REV. 2393 (2007).
46. See Serena Mayeri, The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse, 18 YALE J.L. & HUMAN. 187, 193 (2006).
47. Id. at 194 n.23
48. (citing JAMES CONAWAY, JUDGE: THE LIFE AND TIMES OF LEANDER PEREZ 105 (1973)).
49. Id. at 193-94. For a detailed discussion of the form and function of "slippery slope" arguments and the central role such arguments have played in historical debates over interracial marriage and current debates over same-sex marriage,
50. see Courtney M. Cahill, Same-Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 NW. U. L. REV. 1543 (2005).
51. Mayeri, supra note 37, at 193-95.
52. Ball, supra note 29, at 2746.
53. -388 U.S. 1, 2 (1967).
54. Id. at 3.
55. Id. at 2-3.
56. Id. at 3. An oft-quoted opinion by the trial judge in the case reveals the depth of antiintegrationists' conviction against interracial marriage: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Id. (quoting trial court opinion).
57. Id.
58. Brief and Appendix on Behalf of Appellee at 35, Loving v. Virginia, 388 U.S. 1 (1967) (No. 395).
59. Id.
60. (quoting Brown v. Bd. of Educ., 347 U.S. 483 (1954)).
61. Id. at 43-45.
62. Id. at 47-48.
63. For an argument that the Loving decision was far from a foregone conclusion, see Mark Strasser, Loving Revisionism: On Restricting Marriage and Subverting the Constitution, 51 How. L.J. 75 (2007).
64. Loving, 388 U.S. at 12.
65. Id. at 7-8.
66. Id. at 11-12.
67. Id. at 8.
68. Randall Kennedy suggests that the Loving Court was hesitant to expound on the socio-scientific claims proffered by Virginia because of criticism that the Court's opinion in Brown v. Board of Education relied too heavily on sociological theory. RANDALL KENNEDY, INTERRACIAL INTIMACIES 275 (2003).
69. -388 U.S. at 12.
70. Id.
71. For a more comprehensive discussion of Loving's legal and cultural impact, see John DeWitt Gregory & Joanna L. Grossman, The Legacy of Loving, 51 How. L.J. 15 (2007). The Loving opinion was also significant for its declaration that states do not have exclusive control over marriage, and that federal courts play an important role in regulating marriage as well. See 388 U.S. at 7-8.
72. See, e.g., Mark Strasser, supra note 51 (noting that, while it is clear the Loving Court used strict scrutiny in its equal protection analysis, many courts and commentators are unclear as to why strict scrutiny applied; thus, Loving has been prone to misinterpretation and misapplication);
73. see also R.A. Lenhardt, Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage, 96 CALIF. L. REV. 839 (2008).
74. Lenhardt argues that the Loving opinion pales in comparison to the California Supreme Court decision in Perez v. Lippold, 198 P.2d 17 (Cal. 1948), in which Justice Traynor not only declared marriage a fundamental right, but also stated that "essence of the right to marry is the freedom to join in marriage with the person of one's choice."
75. Id. at 21. Counter to the "judicial bravery" espoused in Perez, Lenhardt claims, Loving's message is "muted," "anemic," and "fails to offer useful insights into the contemporary meaning of civil marriage," as it is cabined within the context of race and does not fully articulate the scope of the fundamental marriage right. See Lenhardt, supra at 856, 865, 891-92.
76. See, e.g., Lewis v. Harris, 908 A.2d 196, 210 (N.J. 2006);
77. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006);
78. Baker v. State, 744 A.2d 864, 887 (Vt. 1999).
79. For a more detailed discussion of courts' interpretations of Loving v. Virginia, see Gregory & Grossman, supra note 58, at 27-32.
80. See. e.g., Baehr v. Lewin, 852 P.2d 44, 60 (Haw. 1993);
81. Goodridge v. Dep't. of Pub. Health, 798 N.E.2d 941, 957 (Mass. 2003).
82. See, e.g., Goodridge, 798 N.E.2d at 958 ("[Loving makes clear that] the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. In this case, as in... Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance-the institution of marriage-because of a single trait: skin color in ... Loving, sexual orientation here. As it did in ... Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination." (internal citations omitted)).
83. Perhaps motivated by the tangle of Loving interpretations, many same-sex advocates turned to Perez v. Lippold for substantive support of their claims that the fundamental marriage right necessarily extends to same-sex partners. Issued nineteen yeas before Loving, Perez not only established a fundamental right to marriage, but a fundamental right to marry "the person of one's choice."
84. See Lenhardt, supra note 59, at 859. Proponents of same-sex marriage have used the holding and language in Perez to urge the court to demonstrate the sort of "judicial bravery" necessary to effecting change in the civil rights arena.
85. Lenhardt, supra note 59, at 891.
86. Neither "child(ren)" nor "family" is referenced even once in the Court's opinion.
87. -388 U.S. 1, 12 (1967).
88. The Lovings referenced children in their brief only twice. First, the Lovings briefly touched upon the problems of illegitimacy and inheritance faced by children of nonmarried parents. Brief for Appellants at 12, Loving v. Virginia, 388 U.S 1 (1967) (No. 395). They also quickly addressed and rejected the state's contentions that mixed race children are biologically inferior.
89. Id. at 37.
90. -466 U.S. 429 (1984).
91. Id. at 430.
92. Id.
93. See id. at 433-34 ("It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin. ... [But] [w]hatever problems racially mixed households may pose for children in 1984[, they] can no more support a denial of constitutional rights than could the stresses that residential integration was thought to entail in 1917. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.").
94. See id. at 433.
95. See id. at 433-34.
96. Stein, supra note 34, at 660-61 ("[W]hat is perhaps the most frequent argument made for amending the Constitution to prohibit same-sex marriage involves children.... [Arguments about children were not as prominent in past debates about amending the Constitution regarding marriage as they are in present debates.....").
97. Ball, supra note 29, at 2751;
98. see also Jones v. Hallaban, 501 S.W.2d 588 (Ky. 1973);
99. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971);
100. Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974).
101. Ball, supra note 29, at 2751-52 ("[P]laintiffs were seeking a remedy that was both legally and definitionally impossible to provide. As the courts saw it, the very definition of marriage required that the two prospective spouses be of different sexes/genders. Whatever it was that the plaintiffs were seeking through their lawsuits, it could not be 'marriage' as that term was defined legally and culturally." (internal citations omitted)).
102. Id.
103. Id. at 2752-53.
104. See id. at 2753;
105. see also GEORGE CHAUNCEY, WHY MARRIAGE? THE HISTORY SHAPING TODAY'S DEBATE OVER GAY EQUALITY 105 (2004) (describing "the lesbian baby boom" of the 1980s, during which lesbian women began exploring and pursuing parenthood through adoption, artificial reproductive technology, and intercourse with "male friend[s].").
106. -852 P.2d 44 (Haw. 1993), reconsideration granted in part, 875 P.2d 225 (Haw. 1993).
107. Because the central issue was whether the circuit court properly granted the State's motion for judgment on the pleadings, the Hawaii Supreme Court did not discuss or analyze the child-centered arguments proffered by either party. Leaving such discussion for the circuit court on remand, the court held only that Hawaii's ban on same-sex marriage amounted to sex-based discrimination meriting strict scrutiny and further review by the lower court after a full presentation of the evidence. See id. at 67-68.
108. Baehr v. Miike, Civ. No. 91-1394, 1996 WL 694235 at *4-5 (Haw. Cir. Ct. Dec. 3, 1996) (citing to the trial transcript and describing the conclusions of one expert that children in same-sex households receive an "overabundance of information about one gender and little information about the other gender.").
109. It is probable that the court dedicated such a large portion of its opinion to the childcentered aspects of same-sex marriage as a result of evidence presented to it by the State. Although the State asserted five "compelling" state interests for preserving marriage as malefemale institution, the circuit court described the State's proffered evidence for the non-childrelated interests as "meager," failing in sufficiency and, at times, nonexistent. Id. at *3, 20, 21.
110. Id. at *22.
111. Id. at *18.
112. Id. at *17.
113. Id. at *21.
114. See Lamba Legal, Landmark Cases, http://www.lambdalegal.org/in-court/ cases/baehrv-miike.html (describing the Baehr decision as the launch pad for the modern gay marriage movement, but noting that the decision "unleashed one of the most profound examples of backlash in our movement's history").
115. HAW. CONST. art. I, § 23.
116. Ball, supra note 29, at 2754.
117. Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 and 28 U.S.C § 1738C (2006)).
118. Stein, supra note 34, at 654.
119. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 957 (Mass. 2003);
120. Baker v. State, 744 A.2d 864, 887 (Vt. 1999).
121. See Stein, supra note 34, at 654.
122. -539 U.S. 558 (2003). Lawrence struck down the Court's previous ruling in Bowers v. Hardwick, which had upheld a Georgia sodomy law banning oral and anal sex between consenting adults. The Bowers court framed the discussion around whether there was a fundamental right to have homosexual intercourse-a framework denounced by Lawrence in favor of an analysis of the broader issue of sexual privacy and freedom. See id. at 566-67.
123. Id. at 567 ("It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.").
124. Id. at 578 ("It [the present case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.").
125. Id. at 590 (Scalia, J., dissenting) ("State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are ... called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.").
126. See, e.g., Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" that Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1945-46 (2004) ("Same-sex marriage ... is bound to follow [after Lawrence]; it is only a question of time. For what after all, could be the rationale for permitting an otherwise eligible same-sex couple to enjoy the tangible benefits and assume the legal obligations of some version of civil union but withholding from them that final measure of respect-that whole that plainly exceeds the mere sum of its component legal parts?");
127. Carlos A. Ball, The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas, 88 MINN. L. REV. 1184, 1185 (2004) ("Lawrence is helpful to those who argue that the right to marry, as protected by the Due Process Clause, includes within its ambit couples of the same gender because the opinion removes an important obstacle that has stood in the way of that argument, namely, that as long as the state was free to criminalize same-gender sexual conduct under Bowers v. Hardwick, it was also free to refuse to recognize the personal relationships that often accompany the underlying criminal acts.");
128. Mark Strasser, Lawrence and Same-Sex Marriage Bans: On Constitutional Interpretation and Sophistical Rhetoric, 69 BROOK. L. REV. 1003, 1036 (2004) ("The [Lawrence] decision adopts a much more respectful tone towards members of the LGBT community and may provide the basis for someday recognizing a right to marry a same-sex partner.").
129. Nat'l Conference of State Legislatures., Measures Before Congress on Same-Sex Marriage, July 15, 2004, http://www.ncsl.org/statefed/humserv/ congressact.htm. Lawrence also prompted President George W. Bush to propose a federal marriage amendment explicitly denying recognition of same-sex marriage-a proposal the President discussed in his 2004 State of the Union address. It was President Bush's State of the Union speech that prompted San Francisco Mayor Gavin Newsom, who attended the event to start issuing marriage licenses to same-sex couples less than a month later.
130. See Sylvia A. Law, Who Gets to Interpret the Constitution? The Case of Mayors and Marriage Equality, 3 STAN. J. C.R. & C. L. 1, 5-6 (2007).
131. Proposed Constitutional Amendment to Preserve Traditional Marriage: Hearing Before S. Comm. on the Judiciary, 108th Cong. 128 (2004) (prepared statement of Rev. Richard Richardson, Assistant Pastor at the St. Paul African Methodist Episcopal Church, Director of Political Affairs for The Black Ministerial Alliance of Greater Boston, and President and Chief Executive Officer, Children's Services of Roxbury, Boston).
132. Id. at 130-31, 133, 135 (prepared statement of Katherine Shaw Spaht, Law Professor at Louisiana State University).
133. Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006);
134. see also Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. ILL. L. REV. 833, 860-61 (1997) ("Parents are important as role models for their children of the same gender because [c]hildren learn to be adults by watching adults.... The importance of the opposite-gendered parent for the complete emotional and social development of the child is now recognized as well: Boys and girls build their notions of their sex roles from experience with both sexes. The loss of cross-gender parenting may have severe emotional consequences for the child. For example, the absence of a father in the home may result in a daughter having trouble relating to men throughout her adult life." (internal quotations omitted)).
135. See Wardle, supra note 103, at 861;
136. Melissa Murray, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, at 23-24 (manuscript on file with author).
137. See Wardle, supra note 103, at 863-64;
138. Murray, supra note 104, at 23-24;
139. see also Monte Neil Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, 1 DUKE J. CONST. L. & PUB. POL'Y 1, 18-24 (arguing that "man/woman marriage" provides the optimal environment for children's social, emotional, and physical development and bestows the "beneficial" social identities of "husband" and "wife" to each partner, whereas "genderless marriage" "cannot deliver the same social goods.").
140. -798 N.E.2d 941, 949 (Mass. 2003).
141. Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment, Goodridge v. Dep't of Pub. Health, No. 20011647A, 2002 WL 1299135 (Mass. Super. Ct. May. 7, 2002) (No. 01-1647A), 2001 WL 35920960. The state claimed that "permitting same-sex marriage might undermine the institution of marriage as a life-long commitment" and encourage heterosexual same-sex friends to get married merely for the convenience or financial benefits that marriage offers.
142. Id. at 61-62.
143. Id. at 63.
144. Id. at 63.
145. Id. at 64 (citing Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter, 66 AM. SOC. REV. 159 (2001)).
146. Id. The state disregarded any findings indicating that children of same-sex marriages develop the same or "arguably 'better'" than children of opposite-sex marriage, noting that Stacey, Biblarz, and other "experts" have questioned the validity of such studies because of their small, homogenous samples. Id.
147. Id. at 65.
148. Brief of Amici Curiae Focus on the Family et. al. in Opposition to Plaintiffs' Motion for Summary Judgment at 23-24, 30-31, Goodridge 2002 WL 1299135 (No. 01-1647A). Amici referenced several studies, including one in Developmental Psychology finding that daughters of lesbian couples were four times more likely to become "active lesbians" than daughters of heterosexual unions.
149. Id. at 23-24.
150. Amici also referenced a 1991 study by the Bureau of Justice, Violence Between Intimates, which found that "married women in traditional families" faced the lowest threat of domestic violence among women. Id. at 30.
151. They further cited P. Cameron & K. Cameron, Homosexual Parents, ADOLESCENCE 31 (1996), a study which concluded that "[h]aving a homosexual parent appears to increase the risk of incest with a parent by a factor of about 50."
152. Id. at 31.
153. Id. at 24-26.
154. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 948, 954-55 (Mass. 2003).
155. Id. at 955. The court had earlier recalled the central principles of Lawrence, particularly its role in "reaffirm[ing] the central role that decisions whether to marry or have children bear in shaping one's identity." Id. at 948.
156. Id. at 961.
157. Id.
158. Id. at 956-57.
159. Id. at 962.
160. Id.
161. Id. at 962.
162. Id. at 963.
163. Id. at 963.
164. Id. at 964 (internal quotations omitted).
165. In his dissent Justice Cordy stated that "[i]t is difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children." Id. at 997 (Cordy J., dissenting).
166. Id. at 996. As Justice Cordy later expounds, "civil marriage is the product of society's critical need to manage procreation as the inevitable consequence of intercourse between members of the opposite sex. Procreation has always been at the root of marriage and the reasons for its existence as a social institution." Id. at 1003 n.34.
167. Id. at 996.
168. Id. at 1002.
169. Id. at 1000. Justice Cordy provides the example: [A] boy raised by two lesbians as his parents has no male parent.... [C]oncern about such an arrangement remains rational [because a child might feel that] neither of his parents "understands" him, or that they "don't know what he is going through," particularly if his disagreement or dissatisfaction involves some issue pertaining to sex. Id. at 1000 n.29.
170. Id. at 1000.
171. Id. at 997.
172. See, e.g., Mary L. Bonauto, Goodridge in Context, 40 HARV. C.R.-C.L. L. REV. 1, 37 (2005) ("I stand with those who predict that the Goodridge decision will come to be regarded as a triumph of freedom. It will increasingly be seen as some people already experience it: a beacon of hope, fairness, and equality-America at a crossroads and choosing the path of fairness.");
173. Cass R. Sunstein, Federal Appeal: Massachusetts Gets It Right, NEW REPUBLIC, Dec. 22, 2003, at 21 (describing the Goodridge opinion as "extraordinary" and a "stirring tribute to individual rights.").
174. -798 N.E.2d at 963-64 (noting that several of the plaintiffs were parents and, as such, deserve access to the "cornucopia" of state benefits provided to married couples and their children).
175. See Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment, supra note 107, at 64.
176. See infra text accompanying notes 138-68.
177. See infra text accompanying notes 255-56.
178. Hernandez v. Robles, 855 N.E.2d 1, 5 (N.Y. 2006).
179. Id. at 9, 11.
180. Id. at 6-7. Justice Graffeo concurred in the opinion.
181. Id. at 11.
182. Id. at 7.
183. Id. at 12.
184. Id. at 7.
185. Id.
186. Id. The Indiana Court of Appeals made a more vigorous version of this argument in its 2005 decision on the same issue, Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005). Framing the issue as whether state recognition of same-sex marriage would serve "all of the same state interests that opposite-sex marriage does, including the interest in marital procreation," the Morrison court concluded that same-sex couples who have children via artificial reproduction techniques or adoption are "by necessity, heavily invested, financially and emotionally, in those processes" and will likely provide their children a stable familial environment "with or without the 'protections' of marriage." 821 N.E.2d at 23-24. In contrast "'accidents' do happen" within the casual relations of opposite-sex couples, thus meriting an opposite-sex marriage institution that promotes "responsible procreation."
187. Id. at 24-25. Because the court saw the central purpose of marriage ("its deep logic") as "regulat[ing] the consequences of man/woman intercourse," it did not touch on the relative parenting abilities of same-sex couples, finding such a discussion irrelevant.
188. Id. at 30.
189. Hernandez, 855 N.E.2d at 7.
190. Id.
191. Id. at 8. The court continued: "What [the studies] show, at most, is that rather limited observation has detected no marked differences." Id. In its amicus brief, the American Psychological Association (APA) cited over twenty empirical studies, which it claimed were "impressively consistent in their failure to identify deficits in the development of children raised in a lesbian or gay household." Brief of Amici Curiae American Psychological Association et. al. in Support of Plaintiffs-Respondent at 34-35, Hernandez, 855 N.E.2d 1. Interestingly, the APA includes in this group the same study by Stacey and Biblarz on which amici in Goodridge relied to assert that there were several significant differences in the development of children raised in same-sex and opposite-sex households. Id.; see supra notes 110-11.
192. See Hernandez, 855 N.E.2d at 11-12.
193. Judge Kaye compared the majority's adherence to traditional notions of marriage to the approach used by opponents of interracial marriage in pre-Loving times, specifically that history demanded marriage remain a relationship between spouses of the same race. Id. at 24-25 (Kaye, J., dissenting).
194. Id.
195. Id. at 24. Judge Kaye's framing the issue as the right to marriage (not the right to same-sex marriage) echoes the precedent set in Lawrence v. Texas, discussed supra text accompanying notes 95-99, in which Justice Kennedy was clear in defining the rights involved as the broader right to sexual privacy and intimacy, not The specific right to same-sex intimacy.
196. Id. at 26 ("The claim that marriage has always had a single and unalterable meaning is a plain distortion of history. In truth, the common understanding of 'marriage' has changed dramatically over history.").
197. Id.
198. Id. at 25, 31.
199. -482 U.S. 78 (1987). Despite the constitutional restrictions on prison life, the Court in Safley found that inmates may enjoy several core aspects of marriage without compromising the effectiveness of their imprisonment. Id. at 95.
200. Hernandez, 855 N.E.2d at 31 (Kaye, J., dissenting).
201. Turner, 482 U.S. at 95-96.
202. Hernandez, 855 N.E.2d at 29-30 (Kaye, J., dissenting).
203. Id. at 31.
204. Id.
205. Id. at 32.
206. Id. Judge Kaye further challenged the majority's holding, noting that moral disapproval, tradition, and uniformity were constitutionally unjustifiable reasons for prohibiting same-sex marriage. Id. at 32-34.
207. See id. at 359 (majority opinion).
208. See id.
209. See id.
210. See id.
211. In re Marriage Cases, 183 P.3d 384 (Cal. 2008),
212. superseded by state constitutional amendment, CAL. CONST, art I, §7.5, as
213. recognized in Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
214. Simone Sebastian & Tanya Schevitz, Marriage Mania Grips SF. as Gays Line up for Licenses, S.F. CHRON., Feb. 16,2004, at Al.
215. See Marriage Cases, 183 P.3d 384 at 402.
216. Id. at 402-404
217. Id. at 404; see also In re Coordination Proceeding, Special Title Rule [1550(c)], Marriage Cases, No.4365, 2005 WL 583129, at *11-12
218. (Cal. Super. Ct. Mar. 14,2005), rev'd in part, 49 Cal. Rptr. 3d 675 (Cal. Ct App. 2006), rev'd, 183 P.3d 384 (Cal. 2008)
219. Marriage Cases, 183 P.3d at 404;
220. see also 49 Cal. Rptr. 3d 675 (Cal. Ct App. 2006).
221. Bob Egelko, Court Appears Split on Same-Sex Marriage, S.F. CHRON., Mar. 5, 2008, at Al.
222. According to its website, Campaign for California Families is "dedicated to defending and representing the values of parents, grandparents and concerned citizens who believe in family, faith and freedom. . . . God is the source of [its] imagination, love and vision for children and families in California and America." SaveCalifomia.com, http://savecalifomia.com/about.html (last visited Dec. 2, 2009).
223. The Prop 22 Legal Defense Fund was formed to promote the passage of Proposition 22 in California in 2000. The proposition, which passed by a roughly sixty percent majority and was codified in CA FAM. CODE §308.5 (2006), declared that "[o]nly marriage between a man and a woman is valid or recognized in California."
224. Answer Brief of Campaign for California Families on the Merits at 65-70, Marriage Cases, 43 Cal. 4th 757 (No.S147999).
225. Id. at 73 (internal citations omitted). That Campaign for California Families sees marriage as an institution for children, not adults, permeates its brief to the California Supreme Court At one point, Campaign for California families posited that, without children, adult intimate relationships are akin to those between "drinking buddies and bridge groups" and that "[m]aniage is different largely because of its importance to children, who cannot protect their own interests within the family as drinking buddies and members of bridge groups can." Id. at 72.
226. Appellant Proposition 22 Legal Defense and Education Fund's Opening Brief at 31,
227. In re Marriage Cases, 49 Cal. Rptr. 3d 675 (Cal. Ct. App. 2006) (No.Al 10651).
228. Respondents' Consolidated Answer to Amicus Curiae Briefs at 39, Marriage Cases, 43 Cal. 4th 757 (No.S147999), 2007 WL 4632425.
229. Id. at 40-44 (noting that the number of children raised by both biological parents would not necessarily increase under a same-sex marriage ban, nor would the safety or stability of children resulting from unintentional procreation be enhanced by such a ban).
230. Id. at 46.
231. Id. at 45.
232. Id. In their brief, same-sex marriage advocates cited to Linda McClain, God's Created Order, Gender Complementarity, and the Federal Marriage Amendment, 20 B.Y.U. J. PUB. L. 313, 336 (2006),
233. in which McClain concludes that "the argument that marriage is not about adult love, but about children, sets up an either/or view of the purposes of marriage that is simply wrong with respect to historical and contemporary understandings of marriage."
234. In re Marriage Cases, 183 P.3d 384, 397 (Cal. 2008).
235. Id. at 398.
236. Id. at 425-426
237. Id. at 424.
238. Id. at 425.
239. Id.
240. Id. at 424-425
241. Id. at 431.
242. -381 U.S. 479 (1965).
243. -482 U.S. 78 (1987).
244. Marriage Cases, 183 P.3d at 432.
245. Id. at 432.
246. Id.
247. Id. at 434.
248. See id. at 434-435
249. Id. at 440-41. The court found no instance of sex discrimination, as it was understood in the context of California's prior sex discrimination jurisprudence. Id. at 439.
250. See id. at 446-451
251. Id. at 453. Justices Baxter (joined by Justice Chin) and Corrigan each wrote dissenting opinions. Justice Baxter argued that the court's decision on same-sex marriage did, in fact create a new constitutional right and thus violated the separation of powers. Id. at 456-57 (Baxter J., dissenting). He concluded that "if there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by [] democratic means." Id. at 456. Justice Corrigan also found that allowing same-sex couples to marry changes the definition of marriage and that such change can only occur by the will of California voters. Id. at 468.
252. See Erin Allday, Newsom Was Central to Same-Sex Marriage Saga, S.F. CHRON., Nov. 6, 2008, at Al.
253. See CAL. CONST, art I, §7.5.
254. See John Wildermuth, Prop 8 Opponents Unhappy with Campaign Leaders, S.F. CHRON., Jan. 25,2008, at Bl.
255. See generally ProtectMarriage.com, http://www.protectmarriage.com (last visited Dec. 2, 2009).
256. ProtectMarriage.com, Robb and Robin Wirthlin's Story, http://www.protectmarriage.com/video (last visited Dec. 2, 2009).
257. See generally ProtectMarriage.com, supra note 207.
258. ProtectMarriage.com, Daddy, Where Do Babies Come From?, available at http://www.youtube.com/watch?v=75J3TN9Zzck (last visited Dec. 2,2009).
259. Id.
260. Id.
261. ProtectMarriage.com, The Story of Prop 8, http://www.protectmarriage.com/ tell (last visited Mar. 14, 2009).
262. Id.
263. Id.
264. ProtectMarriage.com, Finally the Truth, http://www.protectmarriage.com/ video/ (last visited Dec. 2, 2009).
265. Id.
266. Id.
267. Id.
268. Robb and Robin Wirthlin 's Story, supra note 208.
269. Id.
270. Id.
271. Id.
272. Id.
273. ProtectMarriage.com, Everything to Do with Schools, http://www. protectmarriage. com/video/ (last visited Dec. 2,2009).
274. Id.
275. Id.
276. See discussion of the "Yes on 8" campaign ads, supra text accompanying notes 206-229.
277. Murray, supra note 104, at 3.
278. This Section is, by no means, a comprehensive exposition on the history and meaning of modern marriage. It merely serves to trace broad trends in marriage in the past century and highlight Supreme Court jurisprudence on the role of marriage in the United States. For an indepth and thoughtful discourse on the evolution of marriage,
279. see NANCY COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2002).
280. See generally id. ch. 1 (describing how marriage was deeply engrained as a structure of political, religious and familial governance at the time the United States was founded).
281. McClain, supra note 185, at 336.
282. See Murray, supra note 104, at 46 (describing the triangular relationship among parents, their children and the State, whereby the State, at the top endpoint of the triangle, regulates both parents and their children).
283. See Murray, supra note 104, at 56 (noting that marriage was "once heralded as the licensed site for procreation").
284. McClain, supra note 185, at 336 ("[T]he argument that marriage is not about adult love, but about children, sets up an either/or view of the purposes of marriage that is simply wrong with respect to historical and contemporary understandings of marriage.").
285. Id.
286. Id. at 337 n.104 (citing a survey conducted by The National Marriage Project in 2003).
287. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 966-967 (Mass. 2003) (discussing the evolution of marriage);
288. Hernandez v. Robles, 855 N.E.2d 1 (N. Y. 2006) (Kaye, J., dissenting);
289. see also COTT, supra note 230 (tracing how changes in the role, function and meaning of marriage have affected public policy over the past three centuries).
290. See June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 980 (1991) (asserting that women stopped looking to marriage as a source of economic security in the mid-1980s).
291. See id. at 978-979 (1991) (describing evolution of marriage from "a lifetime commitment" to a "contract terminable at will.").
292. Id.
293. Blaine Harden, Numbers Drop for the Married with Children, WASH. POST, March 4, 2007, at A3
294. (reporting that married couples with children now represent less than a quarter of U.S. households - a drastic shift from the 1960s, when more than half of U.S households were comprised of married couples with children).
295. Goodridge, 798 N. E. 2d at 955-956
296. -183 P.3d 384, 435 (Cal. 2008), superseded by state constitutional amendment, CAL. CONST, art. I, §7.5.
297. Id. at 434.
298. -388 U.S. 1,12 (1967).
299. -482 U.S. 78, 95-96 (1987).
300. -381 U.S. 479,486 (1965).
301. Id.
302. -405 U.S. 438,453 (1972) (emphasis added).
303. See discussion of Lawrence, supra text accompanying notes 95-99.
304. See infra note 256 describing California's tradition in leading civil rights victories.
305. See Wildermuth, supra note 206.
306. See generally "No on 8" website sponsored by Equality California, http://www.eqca. org/site/pp.asp?c=kuLRJ9MRKrH&b=4375153 (last visited Dec. 2, 2009).
307. See discussion of the "Yes on 8" campaign ads, supra text accompanying notes 206-229
308. The No on 8 Campaign's failure also signifies a disappointing assimilationism that disserves California's civil rights tradition. From Perez v. Lippold, which legalized interracial marriage nineteen years before the U.S. Supreme Court took up the matter (see discussion of Perez, supra note 59 and accompanying text), to the state's domestic partnership regime, California has innovated in recognizing and protecting the rights of its minority populations.
309. See, e.g.. Justice Scalia's dissent in Lawrence v. Texas, discussed supra
310. See discussion of Perez, supra note 59 and accompanying text.
311. -388 U.S. 1, 6 (1967) (noting that only sixteen states retained laws banning interracial marriage at the time the Supreme Court issued it decision in Loving).
312. -347 U.S. 483 (1954).
313. See National Association for the Advancement of Colored People, Legal Department History, http://www.naacp.org/legal/history/index.htm (last visited Dec. 2, 2009).
314. New Hampshire, Massachusetts, Connecticut, Iowa, and Vermont currently recognize same-sex marriage.