There are many striking aspects to the Supreme Court's DOMA ruling, but perhaps the most compelling is the role that children and their well-being played in the court's reasoning. For the last twenty years, same-sex marriage opponents have claimed that marriage must remain an exclusively heterosexual institution in part because doing so purportedly promotes the welfare of children. Opponents have contended that children do best when raised by their biological mothers and fathers and that society has an interest in promoting heterosexual marriages because they are the "optimal" way of raising children.
Unfortunately for opponents of gay marriage, there is a wide consensus among developmental psychologists and other experts that children are not harmed in any way by having lesbian or gay parents. But even putting that issue aside, it is deeply ironic that defenders of "traditional" marriage, in purporting to promote the best interests of children, have consistently ignored the needs of the tens of thousands of children who are being raised by lesbians and gay men.
This was an issue that Justice Anthony Kennedy raised during the oral argument in the Proposition 8 case last March. Kennedy asked the lawyer defending California's same-sex marriage ban whether it was not the case that the children of same-sex couples were harmed when the state prohibited their parents from marrying. The attorney responded by claiming essentially that whatever harm might exist was a constitutionally permissible price to pay for promoting "traditional marriage."
Justice Kennedy, in writing the majority opinion in the DOMA case, clearly disagreed. Kennedy emphasized that when the federal government treats state-sanctioned same-sex marriages as "second-tier marriages," it humiliates and stigmatizes the children of those marriages. DOMA, Kennedy explained, made it "difficult for children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives."
Kennedy also emphasized the financial harm that DOMA caused the children of same-sex marriage. He noted, for example, that DOMA made paying for health care more expensive for families because it required the federal government to tax the health benefits provided by employers to their workers' same-sex spouses. DOMA also denied Social Security benefits to a surviving same-sex spouse to care for the couple's child.
The Supreme Court's opinion in the DOMA case illustrates how it is the marriage equality side that truly has had the best interests of children at heart all along. No child of a heterosexual couple is harmed in any way when the government recognizes same-sex marriages. In stark contrast, when the government refuses to recognize same-sex unions as marital, it harms the children of lesbians and gay men in tangible ways. The Supreme Court understood this, and that is one of the most compelling reasons why it struck down the federal government's unequal treatment of married same-sex couples.
It is in many ways appropriate that the Supreme Court will be issuing its two same-sex marriage rulings—one challenging the Defense of Marriage Act and the other California’s Proposition 8—by the end of the current LGBT Pride Month. Although it is difficult to predict what the Court will do, it is likely that the Court will grapple in some way with the relationship between recognizing same-sex marriages and the well-being of children.
One of the most telling moments during the oral arguments in the two cases that took place last March was when Justice Anthony Kennedy, who may very well cast the deciding votes, noted that there were about 40,000 children in California being raised by same-sex couples and that these children were vulnerable to an “immediate legal injury” when the government refuses to allow their parents to marry. Kennedy then asked Charles Cooper, a former assistant attorney general during the Reagan administration and the lead lawyer defending Proposition 8, whether it was not correct that “the voices of those children is important in this case.”
Cooper’s answer revealed much about the internal contradictions and moral limitations of the arguments raised by marriage equality opponents. Cooper’s response to Justice Kennedy’s question was twofold: first, he claimed that there was “no data” showing that the children of same-sex couples are harmed if their parents are not permitted to marry; second, Cooper argued that a law, such as Proposition 8, can “be sustained even if it operates to the disadvantage of a group, if it…otherwise advances rationally a legitimate state interest.”
There are (at least) two problems with Cooper’s response. First, there is a deep contradiction between contending, as marriage equality opponents routinely do, that the most important reason why society recognizes marriage is to promote the well-being of children, and then suggesting that whether same-sex couples are permitted to marry has no impact on their children. In fact, the federal judge who heard the evidence introduced by both sides during the Proposition 8 trial concluded in 2010 that the children of same-sex couples benefit in meaningful ways when their parents are permitted to marry. Even David Blankenhorn, the president of the Institute for American Values, and the only witness called upon by Proposition 8 supporters to testify during the trial about child welfare considerations, acknowledged that “adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.”
Second, Cooper’s response illustrates how marriage equality opponents are willing to use the children of lesbians and gay men instrumentally, that is, they are willing to use them as means to promote (what the opponents believe is) the social good. Cooper essentially told the Court that even if the 40,000 children of same-sex couples in California were harmed or disadvantaged because the state prohibited their parents from marrying, that was a constitutionally permissible price to pay in order to promote “traditional” marriage. Although such a cavalier attitude toward the well-being of children would be troubling in any context, it is particularly so coming from a lawyer representing a movement that supposedly seeks to “defend marriage” based in part on the need to promote child welfare.
One hopes that the Court keeps children and their well-being in mind when it rules on the constitutionality of Proposition 8 and DOMA. If the Court does so, it will be marriage equality opponents who will be at greatest risk of losing the cases.
If you're following the news today, or seeing all the red equality icons on Facebook, you areno doubt thinking about marriage equality. The Supreme Court hears arguments in two cases this week—Hollingsworth v. Perry and United States v. Windsor—that have the potential to tip the judicial scales in favor of greater legal equality for LGBT families. Here's a selection of reading that will help you dig deeper.
Does the Bible prohibit homosexuality? No, says Bible scholar and activist Jay Michaelson. But not only that: Michaelson also shows that the vast majority of our shared religious traditions support the full equality and dignity of LGBT people. In this accessible, passionate, and provocative book, Michaelson argues for equality, not despite religion but because of it.
For more than a century before gay marriage became a hot-button political issue, same-sex unions flourished in America. Pairs of men and pairs of women joined together in committed unions, standing by each other “for richer for poorer, in sickness and in health” for periods of thirty or forty—sometimes as many as fifty—years. In short, they loved and supported each other every bit as much as any husband and wife.
In Outlaw Marriages, cultural historian Rodger Streitmatter reveals how some of these unions didn’t merely improve the quality of life for the two people involved but also enriched the American culture.
Among the high-profile couples whose lives and loves are illuminated in the following pages are Nobel Peace Prize winner Jane Addams and Mary Rozet Smith, literary icon Gertrude Stein and Alice B. Toklas, author James Baldwin and Lucien Happersberger, and artists Jasper Johns and Robert Rauschenberg.
Beyond (Straight and Gay) Marriage reframes the family-rights debate by arguing that marriage shouldn't bestow special legal privileges upon couples because people, both heterosexual and LGBT, live in a variety of relationships-including unmarried couples of any sexual orientation, single-parent households, extended biological family units, and myriad other familial configurations. Nancy D. Polikoff shows how the law can value all families, and why it must.
Engaging and largely untold, From the Closet to the Courtroom explores how five pivotal lawsuits have altered LGBT history. Beginning each case narrative at the center-with the litigants and their lawyers-law professor Carlos Ball follows the stories behind each crucial lawsuit. He traces the parties from their communities to the courtroom, while deftly weaving in rich sociohistorical context and analyzing the lasting legal and political impact of each judicial outcome.
Will same-sex couples destroy "traditional" marriage, soon to be followed by the collapse of all civilization? That charge has been leveled throughout history whenever the marriage rules change. But marriage, as E. J. Graff shows in this lively, fascinating tour through the history of marriage in the West, has always been a social battleground, its rules constantly shifting to fit each era and economy. The marriage debates have been especially tumultuous for the past hundred and fifty years-in ways that lead directly to today's debate over whether marriage could mean not just Boy + Girl = Babies, but also Girl + Girl = Love.
Now that the U.S. Court of Appeals for the First Circuit in Boston has struck down the Defense of Marriage Act (DOMA), the Supreme Court should quickly agree to hear the case. In its DOMA ruling, the lower appellate court practically begged the high court for guidance on how judges should assess the constitutionality of laws that treat individuals differently because of their sexual orientation.
In some ways, the Supreme Court has had it both ways in matters related to the constitutionality of laws that withhold benefits or impose burdens based on the sexual orientation of individuals. In 1996 (in Romer v. Evans), the Court struck down a Colorado constitutional provision that denied LGBT individuals (and no others) legal protection from discrimination. Seven years later (in Lawrence v. Texas), the Court found unconstitutional a Texas statute that criminalized consensual same-sex sexual intimacy. But the Court in neither case clearly explained how other laws that treat LGBT individuals differently because of their sexual orientation should be assessed under the Constitution. It is now time for the Court to speak on that issue.
Many of us have been arguing for a long time that lesbians and gay men satisfy the Court's own criteria for determining when to apply heightened (or rigorous) judicial review to laws that treat individuals differently because of who they are. The long history of discrimination that lesbians and gay men have suffered, for example, justifies judicial protection. In addition, it is widely accepted that sexual orientation does not affect the ability of individuals to contribute to society. We all know that there are lesbians and gay men who are doctors, lawyers, scientists, engineers, and even members of Congress. This means that courts should be particularly skeptical of laws that target individuals because of their sexual orientation.
In its ruling striking down DOMA, the First Circuit did not find it necessary to address the question of whether lesbians and gay men are entitled to heightened judicial protection. Nonetheless, after pointing to the Supreme Court's own gay rights cases, it concluded that laws which treat individuals differently because of their sexual orientation must, at the very least, be subject to a meaningful form of judicial review that denies those laws a strong presumption of constitutionality.
One of the factors that the Supreme Court is supposed to take into account in deciding whether to hear a case is the extent to which there is a need to provide guidance to lower courts on a particular question of federal law. Although defenders and supporters of DOMA agree on little, both sides should agree that we need to clear up the confusion regarding how courts should assess constitutional challenges to laws that treat individuals differently because of their sexual orientation.
The lesbian and gay plaintiffs in the First Circuit DOMA lawsuit are either currently married or were married before the deaths of their same-sex spouses. The legal issue in the case, therefore, is not whether the plaintiffs have a constitutional right to marry. Instead, the issue is whether the federal government can deprive the tens of thousands of married same-sex couples the hundreds of rights and benefits that it makes available to heterosexual married couples. The nation desperately needs guidance from the Supreme Court on the question of whether this kind of brazen differential treatment is consistent with our constitutional values of equality and fairness.
If you haven't checked out the enormous wealth of reading material at Scribd, perhaps you can start with our LGBT Pride Collection. For Pride Month, we've pulled together excerpts from a dozen books: memoir, history, and ideas. Click on the covers below to read an excerpt from each book:
And if our excerpts whet your appetite for more, here are some interesting Scribd posts from other publishers we like.
The most striking aspect of Judge Vaughn Walker's ruling, voiding California's ban on same-sex marriage, is how it makes clear that defenders of Proposition 8 did not even come close to presenting evidence in court supporting their claim that gay marriages harm society and individuals. It is one thing to say, during a political campaign in support of a ballot initiative, that same-sex marriage constitutes a threat to society or to the family or to children. It is another thing altogether to back up those claims through the introduction of specific evidence in a court of law.
Judicial rulings by trial courts are almost always forgotten after appellate courts have their say. This is hardly surprising given that appellate courts get the final word on how a lawsuit should be resolved. But there is one thing that trial judges can do that appellate judges cannot, and that is make findings of fact based on evidence submitted by the parties.
For the last twenty years, conservative activists have been prognosticating doom if society were to give same-sex couples the opportunity to marry. And yet, when they had the chance to defend that claim in court earlier this year, they called only one witness -- David Blankenhorn, the President of the Institute for American Values -- to testify. While on the stand, Blankenhorn gave such a convoluted and unsupported explanation of how same-sex marriage is harmful -- he claimed that it contributes to the "deinstitutionalization" (whatever that means) of traditional marriage -- that Judge Walker's ruling gave no weight to his testimony.
Independence Day reminds us not only of our rights as Americans, but also of our rights as human beings on a global scale. This week, our authors have been using their freedom of speech to promote further rights in fields such as education, religion, and LGBT law. Take a look at what they have been up to.
In Steve Wilson's book, The Boys from Little Mexico, one all-Hispanic boys' soccer team surpasses ethnic boundaries and personal struggles to win the Oregon state championship. Recently quoted in Newsweek, Wilson praises the Mexican-American players in the World Cup and their drive for success. The Oregon newspaper, the Woodburn Independent, ran a review for Wilson's book, praising it for taking the local story to a national level.
In his book From the Closet to the Courtroom, Carlos Ball discusses in rich detail five lawsuits that have affected LGBT rights for Americans. In a poignant article for the Huffington Post, Ball poses the question "Is it time for gay federal judges?" Diversity Inc. posted a short interview with the author and the Advocate.com recently ran an excerpt from the book on the topic of high school harassment. An outstanding review of the book was recently posted on Lambda Literary stating "[Ball] appeals to the hearts of his readers by fleshing out the human players in each chapter without sacrificing scholarship."
Harassment often led to violence for our next author, Geoffrey Canada, whose memoir Fist Stick Knife Gun recounts the dangers of growing up in the South Bronx. Waiting for Superman—a new documentary on America's failing education system featuring Canada—was mentioned in Entertainment Weekly. As buzz for the film begins to grow, Geoffrey Canada speaks in a brief interview about his personal feelings towards his childhood when his ideal image of Superman was rocked by the harsh realities of life.
Education is failing in both American schools and juvenile penitentiary systems according to David Chura, author of I Don't Wish Nobody to Have a Life Like Mine. Listen to an interview with Chura on KPFA's Flashpoints(starting 43 minutes into the program) discussing the realities of juvenile incarceration. Listen to another interview with Chura on WMUA Writer's Voice where he describes how the war on crime is synonymous with the war on kids.
Finally, in celebration of UUA's General Assembly in Minneapolis, Beacon authors John Buehrens and Rebecca Ann Parker appeared on the radio program State of Belief to discuss their views on social activism and religion. In their book, A House for Hope, the authors describe a shared momentum among religious progressives and the impact they have on the 21st century. Eboo Patel, author of Acts of Faith, also appeared on the show, discussing his interactions with the Dalai Lama in strengthening Buddhist-Muslim ideals.
As current events continue to shape world on a daily basis, our authors have become prominent voices in speaking for topics that that range from human rights to environmental conservation. Take a look at some of the attention our authors have been getting this past week:
In his book To Uphold the World,author Bruce Rich writes about the Indian emperor Ashoka and his principles of peace and non-violence. In a recent response to the BP oil spill, Rich has published a piece for the Washington Post's blog, Political Bookworm, questioning the possibility of a universal code of ethics.
Carlos Ball, author of From the Closet to the Courtroom, describes in detail five of the most influential court cases in the realm of LGBT rights. In a recent article for the Huffington Post, Ball describes how the election of President Obama was a turning point in LGBT rights; however, in retrospect, little has actually been accomplished.
Gail Dines, author of Pornland, is a prominent voice on how porn has become a sexist, racist, and violent industry. In an article for Mother Jones, Dines (in Washington D.C. with other anti-porn activists) is quoted for her position against porn when she says, "The days of women wearing a coy smile and not much else are long gone."
In keeping with the realm of the psychological, The Lonely American, by Jacqueline Olds MD and Richard S. Schwartz MD, looks at the overwhelming evidence that more Americans are living alone today, affecting not only their physical and mental health, but also the personal interactions within the society as a whole. In a wonderful review looking deeper into this research, the Greater Good, concludes: "turn off your computers, go knock on your neighbor's door, and don't take 'no' for an answer."
Carlos A. Ball is professor of law at the Rutgers University School of Law (Newark) and has written extensively on gay rights issues. The following is an excerpt from Chapter 2 of his new book, From the Closet to the Courtroom, which documents five influential lawsuits on LGBT rights that have ultimately reshaped our country.
Carlos A. Ball is Professor of Law at the Rutgers University School of Law (Newark). He has written extensively on gay rights issues and is the author of From the Closet to the Courtroom, which chronicles five ground-breaking LGBT lawsuits that ultimately defined history.
For supporters of LGBT rights, the election of President Obama represented an apparent historical turning point for sexual minorities in our country. As a presidential candidate, Obama had said all of the right things: he criticized the military's Don't Ask, Don't Tell policy (DADT); he called for the enactment of the Employment Non-Discrimination Act (ENDA), which would protect employees against sexual orientation and gender identity discrimination; and called for the repeal of the Defense of Marriage Act (DOMA).
But now that almost a third of Obama's first term has gone by, there is growing despair among many of his LGBT supporters over how little the administration has accomplished on gay rights. We have been here before. Eighteen years ago many gay rights advocates celebrated the election of President Clinton, the first presidential candidate to reach out to the LGBT community, only to be disappointed by how clumsy and conflicted the new administration was in handling the gays in the military controversy.
It's a big week for us here at Beacon Press. While Cambridge celebrated their "Go Green" awards, Boston has been displaying its LGBT pride all week. Across the globe, nations are being unified by a common love for soccer with the World Cup. Our authors are also getting involved and getting their universal messages out there to the public. Here are a few of their latest updates and achievements:
Carlos Ball's new book, From the Closet to the Courtroom, chronicles five ground-breaking LGBT lawsuits that ultimately defined history. In this month's newsletter from the Lesbian and Gay Law Association of Greater New York, Ball's book received the following praise: "This should become a basic text for college LGBT studies courses and can be read with profit by all students of LGBT law, but it is also aimed at a more general audience and is recommendable to non-specialists as well."
The World Cup has officially begun. Symbolizing the drive, determination, and love for soccer, The Boys from Little Mexico, by Steve Wilson, delves deep into the lives of an all-Hispanic boys' soccer team who, despite cultural differences, language barriers, and academic struggles, won the Oregon state championship. In an interview with Dropping Timber, a soccer blog for the Portland Timbers, Wilson stated, "My hope with the book… is that it humanizes people." OregonLive.com also featured an article on Wilson, focusing on the care he took for the privacy of the students featured in his book.
The more negative side of youth sports represented by the strive for academic scholarships, the pressures of overbearing parents, and the injuries inflicted on overworked children, is the subject of Mark Hyman's book Until It Hurts. In a recently published article in Sports Illustrated, Hyman documents the efforts of Dr. James R. Andrews and his celebrity-athlete endorsed prevention program STOP (Sports Trauma and Overuse Prevention).
A thorough examination of the overpopulation myth, Fred Pearce's book, The Coming Population Crash, discusses lower average birthrates across the globe, the growing epidemic of world hunger, and the first upcoming population decrease that this world has seen since the Black Death. Pearce's book was recently discussed on amnews.com.
From overpopulation to income inequality, Chuck Collins, coauthor of Wealth and our Commonwealth, describes personal wealth as being not only achieved through personal decisions and hard work, but also through the opportunities for success inherent in our society. Collins was quoted in an article for The New York Timeson estate taxes and the legacies of the opulent.
There are a million questions that run through the minds of liberal consumers. How will our purchasing powers affect the economy or the environment? Who frantically toiled in a foreign country to make this coat and what were their wages? Fran Hawthorne, author of The Overloaded Liberal, tackles investing your money into the perpetuation of liberal ideals. In a recent article for The Jew and the Carrot, Hawthorne describes kosher living through the humane methods of animal slaughter and the inhuman wages paid to workers behind the scenes.
In the vein of liberal-minded consumers, we here at Beacon Press would like to congratulate the Harvard Book Store for winning the Cambridge "Go Green Award" for transportation. The store's Green Delivery Service boasts a quick and inexpensive method of using emissions-free vehicles to deliver book orders to readers across the Boston area. Harvard Book Store's actions not only promote eco-friendly methods of delivery, but also support local businesses.