Tuesday, January 15, 2013

The Child-Protective Argument in Same-Sex Marriage Litigation

Guest Blogger

Kenji Yoshino

In my intervention, I plan to unpack the “child-protective” argument relating to same-sex marriage by using the case study of Hollingsworth v. Perry, the federal challenge to California’s Proposition 8. Insistently present throughout the Prop 8 campaign in California was the slogan “Protect Our Children.” Part of the force of this slogan was that, framed at that level of abstraction, it is impossible to contest—who, after all, does not wish to protect children? Yet a broad spectrum of individuals—ranging from the plaintiffs to an expert for the Proponents of Prop 8—have maintained that “protecting our children” can be an argument for, rather than against, same-sex marriage. One useful aspect of the federal trial concerning Prop 8 was that it forced both sides to unpack the question of which children were being protected from what. Several possibilities emerged:
(1)    “Protect Our Children” from Molestation By Gay Adults: In 1977, the answer to the “from what?” question was clear to broad segments of American society. In her “Save Our Children” campaign in Dade County, Florida, Anita Bryant successfully campaigned against ordinances protecting gay people from discrimination by describing them as “perverted” individuals who engaged in the “seduction and molestation” of children. In the Prop 8 campaign, some individuals still answered the question in this manner. William Tam, one of the official Proponents of Prop 8, posted on his website that gay individuals “are 12 times more likely to molest children.” While maintaining that he was simply linking to another site, Tam acknowledged at trial that he believed this statement to be true. He further maintained in a campaign letter that “legalizing having sex with children” was “next” on the gay “agenda list.” In fairness, the lawyers for the Proponents were at pains to dissociate Tam from the campaign, though their success at doing so is questionable.
(2)    “Protect Our Children” from Conversion to Homosexuality: Bryant’s campaign also drew heavily on this view, stating that because gay individuals “cannot reproduce,” they must constantly “freshen their ranks.” During the Prop 8 trial, historian George Chauncey was shown some Prop 8 campaign ads. In perhaps the most famous one, a child comes home to her mother and states that she read a book in school in which a prince marries a prince. She states that she now knows that she can marry a princess. Drawing a direct link between the Bryant campaign and this ad, Chauncey observed: “I think you have got a pretty strong echo of this idea that simple exposure to gay people and their relationships is going to somehow lead a generation of young kids to become gay.” To my knowledge, the Proponents did not argue at trial that the state had an interest in steering its children toward heterosexuality.
(3)    “Protect Our Children” from Being Raised by Gay Parents: The Proponents were willing to make this argument at trial, and not just during the campaign. They maintained that the state had a rational basis for barring same-sex marriage because two biological parents provided the optimal childrearing environment for children. However, this argument appears to concern whether gay individuals should have the right to parent, rather than the right to marry. Once children are situated with a same-sex couple, they would appear to be more, rather than less, protected if their parents were permitted to marry. David Blankenhorn, the expert witness for the Proponents of Prop 8, testified that “[g]ay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children.” He further maintained that “[b]y increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more growing up in loving adoptive and foster families.” To be sure, some same-sex couples might be deterred from having children at all if they were denied the right to marry. Yet the Proponents, to my knowledge, did not argue that the parental rights of gay people should be regulated through such a disincentive.
(4)    “Protect Our Children” from Being Raised by Unmarried Straight Parents:  As the Perry litigation continued, the emphasis shifted from the children of same-sex couples to the children of opposite-sex couples. The contention is that because same-sex couples cannot spontaneously procreate, all of their parenting will be planned. Opposite-sex couples, in contrast, routinely engage in “reckless procreation,” and therefore have a different need for an institution that would stabilize their relationships. This “child-protective” argument appears to be categorically different from the main arguments of the campaign. It maintains that children need to be protected from unmarried straight couples rather than gay couples (married or otherwise). Given that no one is proposing that straight couples be denied the right to marry, an additional premise is needed to complete the argument. This premise is that allowing same-sex couples to marry would cause fewer opposite-sex couples to marry. At trial, expert witness Lee Badgett testified that this predicate was empirically implausible by looking at statistics from jurisdictions (like Massachusetts and the Netherlands) where same-sex marriage had already been legalized. Even if Badgett were wrong, this argument raises constitutional concerns. To the extent that straight couples failed to marry because gay couples were tarnishing the brand, this could run afoul of the longstanding constitutional doctrine that private biases cannot be a justification for governmental action.

This list of possibilities is not exhaustive, and much more would need to be said about each permutation of the child-protective argument. However, I hope that my talk will give a sense that the child-protective argument deserves to be unpacked—all the more so because it appeals to an unassailable value. I am not, of course, contesting the importance of protecting our children. Rather, I am underscoring that, as legal scholar Martin Guggenheim has argued, the rhetoric of children’s rights can often be a mask for adult desires. Talking about children’s rights is not the same as acting in their interests.

Kenji Yoshino is Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law. You can reach him by e-mail at yoshinok at

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