Publication Date

2015

Document Type

Paper

Keywords

Children of same-sex couples, Economic and social benefits of marriage

Abstract

Supreme Court precedent establishes that the government may not punish children for matters beyond their control. Same-sex marriage bans and non-recognition laws (“marriage bans”) do precisely this. The states argue that marriage is good for children, yet marriage bans categorically exclude an entire class of children – children of same-sex couples – from the legal, economic and social benefits of marriage.

This amicus brief recounts a powerful body of equal protection jurisprudence that prohibits punishing children to reflect moral disapproval of parental conduct or to incentivize adult behavior. We then explain that marriage bans punish children of same-sex couples because they: 1) foreclose their central legal route to family formation; 2) categorically void their existing legal parent-child relationships incident to out-of-state marriages; 3) deny them economic rights and benefits; and 4) inflict psychological and stigmatic harm.

States cannot justify marriage bans as good for children and then exclude children of same-sex couples based on moral disapproval of their same-sex parents’ relationships or to incentivize opposite-sex couples to “procreate” within the bounds of marriage. To do so, severs the connection between legal burdens and individual responsibility and creates a permanent class or caste distinction.

Publication Statement

Copyright held by the author. User is responsible for all copyright compliance.

Rights Holder

Catherine E. Smith, Lauren Fontana, Susannah William Pollvogt, Tanya Washington

Provenance

Received from author

File Format

application/pdf

Language

English (eng)

Extent

45 pgs

File Size

233 KB

Publication Title

Georgia State University College of Law

First Page

1

Last Page

45

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