With legal battles over gay marriage simmering across the US, proponents are showcasing a group they had once sidelined: children.
Lawyers are recruiting same-sex couples who have children, putting interviews with kids as young as seven in court filings and organizing media events featuring teenagers.
In May, for example, after a Virginia federal appeals court hearing, Emily Schall-Townley, 16, told a news conference: “These are my two moms. And this is my family.”
The lawyers’ approach marks a strategic shift from several years ago, when proponents of gay marriage kept the focus away from children, if there were any.
Advocates were wary of provoking negative responses from judges and the public at a time when prevailing opinion was more likely to view children as harmed by gay marriage. As recently as 2006, when New York and Washington state high courts upheld bans on same-sex marriage, they sided with states that said having gay parents could hurt youngsters.
The New York court said: “A child benefits from having before his or her eyes, every day, living models of what both a man and woman are like.”
In the case of US v Windsor last year, in which the US Supreme Court extended federal spousal benefits to same-sex couples, Justice Anthony Kennedy — a moderate conservative appointed by former US president Ronald Reagan — turned that around when in the majority opinion, he wrote that the federal law that denied benefits to same-sex couples “humiliates” tens of thousands of their children.
In a separate dispute, involving California’s former ban on gay marriage known as Proposition 8, Kennedy said during oral arguments that 40,000 children in California who live with same-sex parents “want their parents to have full recognition and full status.”
The legal question in the Windsor case did not center on a right to same-sex marriage. Yet its legal reasoning sparked a wave of litigation challenging state gay-marriage bans that is poised to reach the Supreme Court next year, and judges in these cases are picking up on Kennedy’s comments about children.
At the Virginia hearing in May, US Circuit Court judge Roger Gregory asked a state lawyer: “Do you think the child loves the parents any less because they are same-sex parents?”
Others directly cited Kennedy.
In the nearly 20 cases decided so far since Windsor, every judge has ruled against the marriage bans; most cases are on appeal and prohibitions have not been lifted. The most recent decision came on Friday by the 10th US Circuit Court of Appeals, ruling on an Oklahoma law. Same-sex marriage is banned in 31 of the 50 states.
The legal questions involve equal protection, due process and state power. The issue of the welfare of children arises when states try to defend their authority to approve only opposite-sex marriage.
Defenders of the bans said they will continue to assert that same-sex unions harm children.
“We are not retreating,” said lawyer Jim Campbell, of the Alliance Defending Freedom, an Arizona-based Christian group that is defending states with marriage bans.
A main concern is that offspring of gay people often are conceived with anonymous egg or sperm donors.
“Children have a right to know where they come from,” Campbell said.
However, judges are disagreeing with studies put forth by gay-marriage opponents saying children fare better in homes with a mother and a father.
Last month, when a US appeals court ruled against Utah’s marriage ban, judge Carlos Lucero wrote that the best that gay-marriage opponents can say is that “the social science is unsettled.”
In most cases, judges decide the issue on written filings without a full-blown trial with witnesses.
The sole jurist to hold a trial in this current round of litigation, US District Court judge Bernard Friedman of Michigan, said that research questioning the competence of same-sex parents represents “a fringe viewpoint that is rejected ... across a variety of social science fields.”
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