Sitting on the pavement just beyond the Supreme Court steps on the day Proposition 8 was argued, Heather Cronk, of the activist group GetEQUAL, reflected on the throng of several hundred marriage equality supporters who had attended a rally a couple hours earlier.
“There were a lot of kids here,” she said. “It was really powerful to see families who were inviting kids to this moment. It’s clear that the Supreme Court can make a ruling about whether we’re allowed to form families, but we’re already doing that.”
Only a couple of hours earlier, inside the court, Justice Anthony Kennedy had agonized about those kids during the arguments. On the one hand, he observed, “there’s substance to the point that sociological information is new” when it comes to same-sex marriages. On the other hand, waiting for more information before acting could bring “an immediate legal injury” to the children of those households.
“There are some 40,000 children in California,” he noted, “that live with same-sex parents, and they want their parents to have full recognition and full status.”
But in a notable twist that’s transpired over the last decade of the marriage debate, while marriage equality proponents welcomed a conversation about kids and family, opponents only wanted to focus on the acts that produce them.
“What antigay advocates talk about more than anything else now is not even biological children, it’s biological procreation,” says Evan Wolfson, president of Freedom to Marry. “They give virtually no weight to the actual well-being of actual children being raised by their parents.”
In part, that’s because virtually all of the scientifically based research conducted by experts in the field of child development has concluded the children raised by same-sex couples do just as well as those raised by heterosexual parents.
But focusing on the 40,000 kids Justice Kennedy referenced is also problematic because it highlights the fact that you’re explicitly depriving them of a security blanket that is provided to other children. “It demonstrates how perverse it is to deny those kids a host of things—including financial benefits, legal security, and social inclusion—in the name of helping hypothetical other kids,” says Jenny Pizer, law and policy director at Lambda Legal.
That’s exactly what Kennedy was wrestling with: weighing his sense of tradition with the fact that these kids exist in the here and now. “The voice of those children is important in this case, don’t you think?” he queried the lawyer for the proponents of Proposition 8 during the arguments.
“I certainly would not dispute the importance of that consideration,” Charles Cooper conceded.
The admission that those kids deserve consideration is exactly what has led antigay activists down the depraved path of effectively trying to delegitimize the children of same-sex couples through a series of crude legal arguments about why marriages matter.
“It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring,” stated the brief filed by the lead attorney defending DOMA, Paul Clement.
It’s an attempt to distinguish the act of reproducing—the very moment of conception—as marriage-worthy, thereby declaring unintended offspring somehow more legitimate, more worthy of benefits than other offspring.
This contradiction was eloquently noted in a Slate piece aptly titled “The Sexual Fetish of Gay Marriage Opponents.”
“For years, they said gays were too libidinous and licentious to create stable marriages. Now, as proponents of gay marriage emphasize love, fidelity, and commitment, the conservatives are fetishizing coitus.”
But even as the right tries to discount our families as somehow less than, our families not only exist, they continue to expand. And a just society must grapple with reality at some point.
As Wolfson says, “It’s in part because we have become so clearly part of a family and so much more visible—it’s because of that that we have won over people who were not with us before. Continuing to tell those stories is exactly how we are going to get to victory, whether in June or in the next round.”