Justice Watch: "Voice of the children": Proposition 8 and LGBT families

You can hear the excerpts from oral argument discussed below on our AFJ Audio Analysis page for this case.

by Clifford J. Rosky, Associate Professor of Law at University of Utah College of Law

In today’s arguments on the constitutionality of California's Proposition 8, the issue of “standing” took center stage. Chief Justice Roberts and the so-called liberal Justices—especially Justices Ginsburg, Sotomayor, and Kagan—argued forcefully that the sponsors of Prop 8 do not have the right to defend the law in federal court, because they are not representatives of the state of California. Although Justice Kennedy seemed to think otherwise, he, too, suggested that the appeal may not have been “properly granted.” All told, it seems most likely that the case will be dismissed—either because a majority of the Justices agree that the sponsors of Prop 8 do not have standing, or because a majority is not able to agree on any particular result. Given that the plaintiffs won at trial and on appeal, either of these outcomes would be regarded as victories. Come summer, it seems likely that same-sex couples will once again be permitted to marry in California.

But once we dispose of these legal technicalities, there are other ways to take stock of today’s performance—and more broadly, to measure the LGBT movement’s remarkable progress in the last fifty years. One reliable way of assessing today’s argument is to listen carefully to how the Justices talked about the impact of same-sex marriage on kids.

In the opening argument, Justice Scalia drew upon a long tradition of anti-gay rhetoric when he raised the possibility that allowing lesbian and gay people to adopt a child may be “harmful to the child.” Although Justice Scalia claimed to “take no position on whether it’s harmful or not,” he argued that there was still “considerable disagreement among sociologists as to...whether [it] is harmful to the child.” Because “there’s no scientific answer,” he reasoned, Proposition 8 could be justified by the mere possibility that lesbian and gay parenting is harmful.

To be sure, Justice Scalia’s remarks are a far cry from Anita Bryant’s notorious “Save Our Children” campaign, in which she argued that “homosexuals can’t reproduce, so they must recruit” children into the “homosexual lifestyle.” But even so, Justice Scalia’s remarks betray a rather strange and strained view of the existing data. By this point, we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.”

Of course, all eyes were on Justice Kennedy in today’s argument—but as usual, he confounded any effort to discern where he stands. On one hand, he admitted that he found “substance” in Justice Scalia’s point that the “sociological information is new.” Because same-sex couples have not been permitted to marry until the twenty-first century, he explained, “We have five years of information to weigh against 2,000 years of history or more.” “On the other hand,” he continued, “there is an immediate legal injury...and that’s the voice of the children.” Giving eloquent voice to the interests of children raised by same-sex couples, Justice Kennedy explained: “There are some 40,000 children in California...that live with same-sex parents, and they want their parents to have full recognition and full status.” Admonishing the sponsors of Prop 8, he insisted: “The voice of those children is important in this case, don’t you think?” If Justice Kennedy remains focused on the voices of these children, then the prospects for lesbian and gay families look bright.