States fighting to defend their bans on same-sex marriages are focusing much of their legal firepower on kids, not adults.
In hundreds of pages of filings in a federal appeals court, Utah, Oklahoma and their allies are arguing that children belong in homes with a father and mother. They also express concerns that same-sex marriages could result in a declining birth rate.
The Denver-based 10th U.S. Circuit Court of Appeals is scheduled to hear oral arguments in both cases in April.
“Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and even economically when reared in an intact home by both biological parents,” a brief by defendants in the Utah case says.
That blueprint is being followed around the country, as states claim that gay-parent homes are weaker incubators for kids than homes run by heterosexuals. Allowing same-sex marriages threatens to shift the focus of marriage from being “child centric” to “adult centric,” they argue.
Plaintiffs in gay marriage lawsuits contend that the strategy of the states in attacking same-sex parenting is backfiring because legal bans on gay marriage hamper parents from providing for kids.
“It’s unfortunate that this debate — particularly as it relates to children — is based on a theory that has no basis in truth,” said John V. McDermott, a Denver attorney who filed an amicus brief in support of plaintiffs in the Utah case. “I think the defendants are making it a big part of their defense because they are running out of arrows in their quiver.”
McDermott’s brief represents the interests of 46 U.S. businesses including Aspen Skiing Co., Facebook and Google. State marriage bans hurt their ability to recruit the most talented workforce, partly because they cannot offer the same health benefits that impact children, he said.
In Bishop vs. Smith, the Oklahoma gay marriage case, defendants argue in their brief that many social-science studies confirm that children do best when raised by both biological parents. It cited Supreme Court decisions stating that a constitutional “liberty interest” exists for the “natural” family and that children have a right to know their natural parents.
Defendants in the Utah suit claimed that legalizing gay marriage could trigger a drop in birth rates, “with the demographic and economic crises that could bring.”
“The state has a compelling interest in ensuring adequate reproduction, and conversely, in avoiding a definitional change that (over time) could send its birth rate below replacement levels — as has already happened in a number of nations and U.S. states that have adopted a genderless definition,” their brief states.
But McDermott said that in U.S. vs. Windsor, in which the U.S. Supreme Court struck down the Defense of Marriage Act, Justice Anthony Kennedy, giving the majority opinion, indicated that the law unconstitutionally classified same-sex unions as “second-tier” marriages. Most significant, McDermott argued, was that Kennedy’s opinion made it clear how detrimental DOMA was to children.
“And it humiliates tens of thousands of children now being raised by same-sex couples … (making) it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives,” Kennedy wrote in the 2013 decision.
One Colorado child isn’t shy about weighing in on the gay parenting debate. Morgan Martin, 13, a seventh-grader at Platt Middle School in Boulder, aspires to become Colorado’s spelling-bee champion. She also has two moms, Jenny and Jodi.
“I want my parents to get married,” Morgan said during a recent interview at her Louisville home. She envisions a big wedding with an even bigger party afterward.
Morgan explains that she doesn’t know her “donor,” or father, after Jenny gave birth to her through a donor program. Jenny Evans met Jodi Martin at an Oklahoma City law firm where they worked. Jenny and Jodi fell in love about the time Morgan was in first grade.
Jenny and Morgan changed their last name to Jodi’s surname after Jenny’s father and brother essentially ostracized her following her union with Jodi, who has since adopted Morgan. The couple filed an amicus brief supporting plaintiffs in the Utah case.
Jodi said she was happy when Colorado passed its civil unions law, but a marriage would allow her family to enjoy 1,100 legal rights that only married couples receive.
“I’ve always thought of Morgan as my daughter, not just my adopted daughter,” Jodi Martin said. “I’d put my life on the line for her.”
She said the beauty of parenting is seeing who a child can become with loving guidance. Jenny said she had some trepidation about how other kids would treat Morgan, but she has been mostly pleased by their acceptance of her. Morgan drew laughter from her two moms when she described her upbringing.
“Strict.”
Kirk Mitchell: 303-954-1206, denverpost.com/coldcases or twitter.com/kmitchelldp
