In US gay marriage cases, children emerge in the limelight

Lawyers are recruiting same-sex couples who have children, putting interviews with kids as young as seven in court filings, and organizing media events featuring teenagers. In May, for example, after a Virginia federal appeals court hearing, 16-year-old Emily Schall-Townley told a televised news conference: “These are my two moms. And this is my family.”

The lawyers’ approach marks a strategic shift from several years ago, when proponents of gay marriage kept the focus away from children, if there were any.

Advocates were wary of provoking negative responses from judges and the public at a time when prevailing opinion was more likely to view children as harmed by gay marriage.

As recently as 2006, when New York and Washington state high courts upheld bans on same-sex marriage, they sided with states that said having gay parents could hurt youngsters. The New York court said, "a child benefits from having before his or her eyes, every day, living models of what both a man and woman are like."

But in the milestone case of U.S. v. Windsor last year, in which the Supreme Court extended federal spousal benefits to same-sex couples, Justice Anthony Kennedy - a moderate conservative appointed by President Ronald Reagan - turned that around. In the majority opinion he wrote that the federal law that denied benefits to same-sex couples “humiliates” tens of thousands of their children.

In a separate dispute, involving California's former ban on gay marriage known as Proposition 8, Kennedy said during oral arguments that the 40,000 children in California who live with same-sex parents "want their parents to have full recognition and full status.”

The legal question in the Windsor case did not center on a fundamental right to same-sex marriage. Yet its legal reasoning sparked a wave of litigation challenging state gay-marriage bans that is poised to reach the Supreme Court next year, and judges in these cases are picking up on Kennedy's comments about children.

At the Virginia hearing in May, U.S. Circuit Court Judge Roger Gregory asked a state lawyer, “Do you think the child loves the parents any less because they are same-sex parents?” Others directly cited Kennedy.

In the nearly 20 cases decided so far since Windsor, every judge has ruled against the marriage bans; most cases are on appeal and prohibitions have not been lifted. The most recent decision came on Friday by the 10th U.S. Circuit Court of Appeals, ruling on an Oklahoma law. Same-sex marriage is banned in 31 of the 50 states.

The legal questions involve equal protection, due process and state power. The issue of the welfare of children arises when states try to defend their authority to approve only opposite-sex marriage.

'UNSETTLED' SOCIAL SCIENCE

Defenders of the bans said they will continue to assert that one reason states should confine marriage to opposite-sex couples is that same-sex unions could harm children.

“We are not retreating,” said lawyer Jim Campbell, of the Alliance Defending Freedom, an Arizona-based Christian group that is defending states with marriage bans. A main concern is that offspring of gay parents often are conceived with anonymous egg or sperm donors. “Children have a right to know where they come from,” Campbell said.

But judges are casting doubt on studies put forth by gay-marriage opponents saying children fare better in homes with a mother and a father. In June, when a U.S. appeals court ruled against Utah’s marriage ban, Judge Carlos Lucero wrote that the best that gay-marriage opponents can say is that “the social science is unsettled.”

In most cases, judges decide the issue on written filings without a full-blown trial with witnesses. The sole jurist to hold a trial in this current round of litigation, U.S. District Court Judge Bernard Friedman of Michigan, said that research questioning the competence of same-sex parents represents “a fringe viewpoint that is rejected ... across a variety of social science fields.”

Same-sex couples have been litigating for a marriage right for decades, and many have been parents, including four of the seven couples in the landmark 2003 Massachusetts case that led to the first legal same-sex marriage.

The difference now, said Fred Sainz of the Human Rights Campaign, a gay civil-rights advocacy group that scouts plaintiffs for cases, is one of emphasis as lawyers respond to positive signals from judges. "We now pro-actively push kids to be front and center," he said. "We made a vulnerability into an opportunity.”

The Family Equality Council, a Washington, D.C., gay-marriage advocacy group, submitted a brief in the Windsor and Proposition 8 cases that included quotes from interviews with children of same-sex couples. That sought to show the children suffer when states prevent their parents from marrying.

The group has filed an updated version in several current lawsuits. Among other examples, the brief says "the young son of two gay men" asked “Dad, are we a family?” when he overheard a hospital staffer tell one parent he couldn't sign the other's medical paperwork.

After last year's Windsor ruling, the Human Rights Campaign recruited Emily Schall-Townley's two mothers, Carol Schall and Mary Townley, to join a lawsuit against Virginia's ban on same-sex marriage.

Sainz said the women, who had been married in California and were seeking recognition of their union in Virginia, added another dimension to the case because the couple that had initially filed it were gay, childless men trying for a marriage license for the first time.

Schall, who helped write her daughter's statement for the press conference held after the court hearing, said, "We really sensed that she was ready for this."

Emily said her moment in the TV spotlight was nerve-racking: "I'm never a fan of talking in front of a lot of people, especially with TV cameras and everyone staring." But she said she knew her participation was important to her mothers.

A ruling in the case is expected any day.