Advocates for same-sex marriage got a positive sign during Tuesday’s opening arguments of Obergefell v. Hodges, the Supreme Court case that could decide whether marriage licenses of all couples—including gays and lesbians—must be recognized nationwide.
John J. Bursch, Michigan’s special assistant Attorney General, was trying to convince the court that same-sex couples were unable to have the same emotional attachment as their adoptive, straight counterparts when Justice Anthony Kennedy butted in.
“It goes back to the basic point where you began where you had some premise that only opposite-sex couples can have a bonding with the child,” he said. “That was very interesting, but it's just a wrong premise.”
Kennedy’s declaration sounded like a big victory for gay-rights activists—and it may be. But, curiously, it appeared that he didn’t want to hear the science that supports his statement.
“Well, part of wait and see, I suppose, is to ascertain whether the social science—the new studies—are accurate. But that it seems to me, then, that we should not consult at all the social science on this, because it’s too new,” Kennedy told Mary L. Bonauto, the attorney arguing for gay marriage.
“You think you say we don’t need to wait for changes. So it seems to me that if we’re not going to wait, then it’s only fair for us to say, well, we’re not going to consult social science.”
Bonauto immediately countered: Research almost universally says that gay parents are just as (or more) likely to produce a happy, healthy adults as children from opposite-sex, two-parent households.
“These issues have been aired repeatedly, there is, as you all have heard, a social science consensus that there’s nothing about the sex or sexual orientation of the parent,” said Bonauto.
And it’s not particularly new science, either.
“And this isn’t just research about gay people,” she said. “It’s research about, you know, again, what is the effect of gender, it goes for 50 years.”
“Every reputable and peer-reviewed study that has been done over the last few decades proves it. Kids, by every important metric or marker, raised by gay or lesbian parents do as well as kids raised by a mother and a father. That includes longer research projects,” says Judy Appel, the executive director of Our Family Coalition, a nonprofit that supports gay and lesbian families with children.
There’s the 2010 Stanford study that says “children of same-sex couples are as likely to make normal progress through school as the children of most other family structures.” There’s the 2007 Florida State University paper that says “Children (of gay and lesbian adoptive parents) have strength levels equal to or exceeding the scale norms.”
There are even some studies, like this one from UCSF and another from the University of Melbourne last year, that say kids of gay and lesbian parents might be better off socially, emotionally, and academically.
Then there’s the worry that the sample size is too small or that the studies aren’t long enough. But those concerns have been dispelled, too, in this Tufts study from 2013 that concludes “extensive data available from more than 30 years of research reveal that children raised by gay and lesbian parents have demonstrated resilience with regard to social, psychological, and sexual health despite economic and legal disparities and social stigma.”
Ignoring these findings and delaying recognition of gay marriage is not benign, Bonauto argued on Tuesday.
“In terms of waiting, I do think the effect of waiting is not neutral. It does consign same-sex couples to this outlier status, and there will be profound consequences that follow from that,” she said.
Even Chief Justice John Roberts—who, by the end of the debate, raised more questions about the Supreme Court’s right to step in on this issue than Kennedy—believed that withholding this science would make gays and lesbians second-class citizens, if temporarily.
“You’re quite right that the consequences of waiting are not neutral,” he said.
That’s why opening arguments, Appel believes, took such a personal turn on Tuesday.
“Those against same-sex marriage have extolled that position (that gay and lesbian parenting, as a concept, harms children) and have actually backed off from it. They’ve lost ground in many of the cases that have been coming up through the courts. They know they don’t have the science or the research or foundation to support it, so they have to make it this personal thing,” she said.
Instead, Bursch focused on the idea of marriage as a tradition and that a sudden shift in public opinion simply isn’t enough to grant equal marriage rights to same-sex couples nationwide.
But Appel didn’t appear to mind that the trial veered into personal experience—she could just as easily argue that as well as scientific evidence.
“I have two kids, a 14-year-old and a 17-year-old. Our kids go to school with everybody else. We do everything that all other families do. We have the same struggles; the same joyous moments. Parenting is a really personal thing. It doesn’t surprise me that the arguments become this personal thing. A lot of people have experienced being around a gay or lesbian family in the last 10 years because they’re a lot more comfortable being out,” she said.
"It is personal. But we have really good research that holds up that this a positive experience.”