A Children's Rights Perspective Dissent from Obergefell


This “dissent” was produced for a book project organized by Professor Jack Balkin of Yale Law School. Each participant was assigned a role to play on the subject of “What Obergefell Should Have Said.” In my role as a dissenting Justice, I offered a “children’s well-being” lens on the question of the legalization of same-sex marriage. 

During the national debate over same-sex marriage, in both legal and cultural milieux, the subject of children was often raised but poorly explored. This dissent fully states the argument for children as the most important part of the argument for maintaining marriage as opposite-sexed. Such an argument should have been embedded all along within family law, but was rather often expressed only sociologically or psychologically. 

The dissent demonstrates first that prior to same-sex marriage, every Supreme Court opinion, and the vast majority of state marriage laws, understood marriage recognition as a legal tool for managing the consequences of heterosexual romantic pairings. In short, marriage encouraged romantically-involved opposite-sex couples to channel procreation into marriage given children’s long-run needs for stability and care from their parents. This comported with family law’s default position:, children are the vulnerable parties requiring priority care from both parents and the state. 

In the face of a federal constitutional right to same-sex marriage, however, the general welfare of children cannot any longer ground any state’s marriage recognition law. Instead, Americans are given to understand that the state has no special interest in linking children with their mother and father or kin. 

Second, the dissent articulates the conflict between the Casey v. Planned Parenthood substantive due process formula, and broadly accepted standards for finding unemumerated constitutional rights outside of sexual expression cases. It also shows how the Casey formula fails to account for, and even clashes with, children’s rights or interests in identity, in liberty, and in fashioning the meaning of their own lives. 

Finally, this dissent responds to the often heard legal (and cultural) accusation that only animus against homosexuals could account for the resurgence of a children’s welfare position within the same-sex marriage debate. To the contrary, there were emerging signs that law and culture were beginning to learn from their mistake of overlooking children. Pertinent legal reforms showcase this. It is also a troubling argument that uses past carelessness or ignorance regarding children’s interests as a warrant for more of the same.