Remember meForgot password?
    Log in with Twitter

article imageOp-Ed: SCOTUS not Attorneys Advocate for The Best Interest of the Child

By Karen Edwards     Mar 30, 2013 in Science
The gavel-to-gavel analysis continues. A serious post-op debriefing is recommended. Were the attorneys sufficiently prepared for the Supreme Court of the United States' (SCOTUS') justices' targeted focus on the best interest of the child?
Nobody likes their Achilles' heel exposed.  Nevertheless like Homer's great mythological warrior a seemingly small but crucial weakness can be lethal even to the best of oral arguments.
In the Hollingsworth v. Perry case; Charles Cooper, Esq. on behalf of the petitioners and Theodore Olson, Esq. on behalf of the respondents both performed brilliantly Tuesday morning despite this questionable chink in their respective armor.
However, in the proceedings referencing this California Proposition 8 case; neither attorneys were amply prepared at least during oral arguments for the Court's targeted focus on matters pertaining to the best interest of the child.
Both sides clearly would have benefited from a more in depth social science analysis. Or if such a consultation presumably transpired; a serious post-op debriefing is in order.
By way of background; Proposition 8 of the California ballot is entitled "Eliminates Rights of Same Sex Couples to Marry. Initiative Constitutional Amendment".
In Proposition 8; a new provision -- namely Section 7.5 of the Declaration of Rights to the California Constitution -- stipulates that "only marriage between a man and a woman is valid or recognized in California".
Proposition 8 of the California ballot and state amendment passed during the November 2008 presidential elections. The proposition took effect immediately, more precisely, the very next day.
With the passing of Proposition 8; LGBTQ+ persons who were once able to lawfully wed other same gender LGBTQ+ folks in the state of California would now no longer be able to partake in this formerly state sanctioned right.
It should be noted, however, that the passing of Proposition 8 in California did not necessarily impact adversely the previous state licensed LGBTQ+ same gender marriages sanctioned before November 5, 2008 or the ongoing legalization of LGBTQ+ domestic partnerships to same gender folks.
Notwithstanding; a previous California Supreme Court ruling that took place back in March 2000 actually sanctioning the rights of LGBTQ+ persons to legally marry same gender LGBTQ+ folks was now invalidated by the passing of Proposition 8.
In short, LGBTQ+ persons were granted the right to marry same gender LGBTQ+ folks back in 2000 by the Supreme Court of California.  But in 2008, the voting electorate of the state of California lawfully elected to retract this once legal and state sanctioned right even though LGBTQ+ persons retained the option to legalize their same gender unions to one another via a state sanctioned domestic partnership.
In all fairness to the folks of the state of California, they previously voiced this very same dissenting opinion toward the legalization of LGBTQ+ marriages to other same gender LGBTQ+ folks by initially voting in favor of Proposition 22 back in 2000 which also prohibited the lawful and state sanctioned unions between LGBTQ+ persons to one another of the same gender.
Briefly, Proposition 22 is entitled "Limit on Marriages. Initiative Statue". It is also legitimately referred to as the "California Defense of Marriage Act" presumably taking its title in part from the federal government's 1996 Defense of Marriage Act (DOMA) which also states that " 'marriage' means only a legal union between one man and one woman as husband and wife, and 'spouse' refers only to a person of the opposite sex who is a husband or a wife".
It was the California Supreme Court who overruled the wish of the voting electorate as expressed in Proposition 22 in the very first place by invalidating the initiative to define marriage as only being between one man and one woman.
By overruling Proposition 22 back in 2000; it was the California Supreme Court not the voting electorate who ruled in favor of the legitimization of LGBTQ+ marriages to same gender individuals by the state.
Will the voice of the electorate prevail? Will SCOTUS uphold the Supreme Court of California's 2000-decision? Or will there be a SCOTUS surprise or compromise?
By way of further background and clarification please note that I just recently coined the term LGBTQ+ as a descriptor to more precisely, accurately and neutrally describe the various diverse sentiments expressed towards the LGBTQ+ community or LGBTQ+ behaviors and practices.
Specifically, LGBTQ+ refers to lesbian, gay, bisexual, intersex, transgender, transexual, third sex, queer or questioning folks as well as to those similarly identified under other such acronyms elsewhere.
With the background reviewed; the question still remains just whose voice best represents the true will of the people including its non-voting population especially its children?
According to the SCOTUS transcript; it was Justice Elena Kagan's seemingly innocuous yet patently relevant question that ignited the simmering social science controversy relatively early on in the proceedings as it pertains to "the best interest of the child" although none of the justices ever used that particular phrasing throughout the entire two day proceedings.
Justice Kagan asked attorney Charles Cooper: "What harm do you see happening and when and how and -- what -- harm to the institution of marriage or to opposite sex couples, how does the cause and effect work?"
Charles Cooper -- the attorney for the plaintiff who supports Proposition 8 defining marriage between one man and one woman only -- initially refused to answer the question at all choosing instead to tell the SCOTUS justice " I -- I would reiterate that we don't believe that's the correct legal question before the Court".
But it was Justice Anthony Kennedy who insisted that Cooper provide a less defensive more straightforward answer to Kagan's query.
Similarly put off by Cooper's inability to provide the Court with at least one concrete example of the harm altering the definition of marriage to include same gender LGBTQ+ couples might engender; Justice Anthony Scalia was quick to voice his puzzlement and chose to answer Kagan's question himself.
Justice Scalia responded, "Mr. Cooper, let me -- let me give you -- one concrete thing.  I don't know why you don't mention some concrete things.  If you redefine marriage to include same-sex couple, and there's considerable disagreement among -- among -- sociologists as to what raising child in a -- in a single-sex family whether that is harmful to the child or not. Some States do not -- do not permit adoption by same-sex couples for that reason."
After a brief interjection by Justice Ruth Bader Ginsberg; Scalia continued "I don't think we know the answer to that, whether it -- whether it harms or helps the child. There's no scientific answer to that question at this point in time."
To which Justice Anthony Kennedy responded "On the other hand, there is an immediate injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of these children is important in this case, don't you think?"
Cooper's ongoing attempt to deflect the question by claiming perhaps even justifiably that he was not responsible to prove possible injury to the child since he maintains that it was incumbent upon the respondent to prove no harm was particularly baffling in light of the fact that his basic premise for retaining the definition of marriage between one man and one woman hinged on the notion of the state as an invested facilitator and perhaps regulator of responsible procreation.
However, the goal here is not to single out the shortcoming of the attorney for the plaintiff who as previously stated did quite well indeed. But Justice Scalia did open the door rather widely for Cooper to present all types of social science data cautioning against the facilitation of procreation among LGBTQ+ same gender couples.
Scalia is right the scientific data is still inconclusive on the effects of being reared in a household of two LGBTQ+ same gender parents.  Cooper should have been better prepared during oral arguments to present data not only on LGBTQ+ same gender couples but also on single non-married parents as well as married male-female cohabiting couples invariably the children in the latter group on average fare better than the others.
The attorney for the respondent, Theodore Olson also missed a golden opportunity to bolster his case with respect to the best interest of the child.  But unlike Cooper, Olson's mistake wasn't in adapting a defensive non-communicative pattern of behavior when addressing the best interest of the child.
Instead, Olson's oral argument focused almost exclusively on the LGBTQ+ adults' individual rights to privacy and the pursuit of happiness via marriage virtually ignoring the best interest of the child.  
Olson could have taken the same scientific findings Justice Scalia cited to draw parallels to the Loving v. Virginia case granting interracial couples the right to marry.
During those 1967 proceedings; social scientists also couldn't predict what the effects would be on raising biracial children in either a two parent mixed race family or single family home.  But we now know we reaped at least one US President out of that state-sponsored experiment from a state that helped to establish precedence even before the federal Loving v. Virginia ruling sanctioning interracial marriages.
President Obama was born in 1961. His parents married in his home state of Hawaii. Loving v. Virginia was not passed until 1967.
To everyone's discredit during oral arguments; no one broached although Justices Kennedy and later Roberts came very close needless to say resolved the seeming paradox incurred by the theoretical assumption that children born out of wedlock including those of same gender LGBTQ+ couples in this case are probably injured developmentally in some way not necessarily by the rights or lack thereof of their two same gendered LGBTQ+ parents but more so by the status such rights or lack thereof actually confer directly on the child as either a "legitimate", "illegitimate" or "second-class citizens of sorts" perhaps only legitimized via some less than or other than domestic partnership.
If presented as such, now theoretically the child of a LGBTQ+ union who appears to be faring well in such a single gendered household may still be adversely affected but probably in a less readily measured manner not by the gender of the child's parent but by the child's status as a less than or other than citizen likened perhaps to the psychology of children born and reared in America to illegal immigrants.
Moreover, LGBTQ+ persons as individuals have never been barred from entering into non-LGBTQ+ marriages or marriages to other LGBTQ+ persons of a differing gender.  And many have done just that and still marry persons of a differing gender. Out of these unions children will be, have been and are created.
Are these legitimate children better than, more important than their illegitimate siblings or siblings born of a domestic partnership?  Do you think they will all be treated the same?
So why didn't Olson counter Cooper's argument? If the primary purpose of marriage is to regulate procreation; then the marriage of LGBTQ+ folks to same gender LGBTQ+ folks should increase the likelihood of family stability by decreasing the probability of a LGBTQ+ person marrying and divorcing a child's non-LGBTQ+ or LGBTQ+ parent of a differing gender.
Furthermore, the presumed adverse psychological impact on the children of all legal but federally unsanctioned unions if any should now be significantly minimized and only rightfully so by a society who now regards even these legitimate children as some kind of second class citizens.
Do not all these American children deserve -- even the possibility of -- untainted, American citizenship?
Hindsight is, of course, 20/20. A social science debriefing — even post operations — is strongly recommended. Again, kudos on a
job well done!
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
More about Scotus, Marriage equality, Proposition 8, Proposition 22, DOMA
More news from
Latest News
Top News