[T]here is an immediate legal injury or—what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California . . . that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?
—Justice Anthony Kennedy
Transcript of Oral Argument at 21, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144) (argued Mar. 26, 2013).
We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage[sic]. Which is it?
—Chief Justice John Roberts
Id. at 61.
Although the questions raised during oral arguments in United States v. Windsor and Hollingsworth v. Perry were wide-ranging, one of the most discussed was how to consider the effects of laws that outlaw or prohibit recognition of same-sex marriages on children of same-sex couples. An amicus curiae brief submitted in both cases by the Family Equality Council answered the question simply: by looking to the words of children of same-sex couples and lesbian, gay, bisexual, and transgender (LGBT) youth. By giving the children, whose well-being was otherwise described only by adults, a voice in the Supreme Court, the amici tapped into an argument that proved to be persuasive.
The Family Equality Council's Amicus Brief
The brief—submitted on behalf of amici Family Equality Council, other nonprofit organizations that support families headed by same-sex couples, and Sarah Gogin, a young woman raised by two dads—was written by pro bono attorneys at Bryan Cave LLP's San Francisco office. Bryan Cave Counsel Katherine Keating, whose practice generally focuses on trademark, copyright, and intellectual property litigation, took the lead in writing the brief.
The amici did not cite any law. Instead, they focused on a perhaps more effective means of persuasion: the words of children of same-sex couples themselves. Some of them are youth still; others, like Sarah Gogin, are successful adults who were raised by same-sex parents.
[S]ome people I thought, you know, they're cool with my family. But then when it comes to same-sex marriage, they have a different opinion. They're like, "I don't think they should get married. I think things are fine the way they are now." But they don't realize that they're talking about my family, too.
Brief for Family Equality Council et al. as Amici Curiae Supporting Respondents at 1, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144), and United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (quoting Sarah Gogin, then 16, in In My Shoes: Stories of Youth with LGBT Parents at 3:49–4:25 (Jen Gilomen & COLAGE 2005)).
So often in cases that deal with children—child welfare, juvenile justice, education, and family law—we hear about the effects on children and youth of our decisions from other adults: expert witnesses, social workers, teachers, and parents. Keating says that while similar briefs filed over the years similarly focused on social science research, the goal here was to give the court the information straight from the youth themselves. "Although those who oppose marriage for same-sex couples frequently make assumptions about the quality of the children's family lives, the children themselves are rarely asked to explain what they actually experience." Brief for Family Equality Council at 2. Samuel Putnam-Ripley, whose testimony before the Maine legislature when he was 14 years old was quoted in the amicus brief, pointed out the problem with ignoring the youth voice: "I want to talk today about how kids all over the state are affected by the current limitations on marriage. I want you to understand that denying gays and lesbians their right to marry doesn't just affect adults." Id. (quoting An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom: Hearing on LD 1020 Before Me. Joint Comm. on the Judiciary (Apr. 22, 2009)).
Keating also intentionally focused on the children's and youth's positive statements, recognizing that the normalcy of the families the children described could be most convincing. Young people quoted in the brief described ordinary, everyday experiences they share with their families:
My parents—my two moms—go to work every day, like other parents. They cook dinner and mow the yard. They take care of the house. Volunteer in the community. Pay their bills. Do the thousands of little things that keep a household running. And they love me, unconditionally.
Brief for Family Equality Council at 11 (quoting Brian Arsenault, Op-Ed, "Maine Voices: Young Man's Wish for His Moms on Mother's Day: The Right to Marry," Portland Press Herald, May 11, 2012).
Marriage is about family and my dads take the best care of me and my brother. My family is no different than any other family. We go to the movies, they take me to my sports practice, play games, and make the holidays, especially Christmas, awesome.
Brief for Family Equality Council at 13 (quoting Austin Covey, nine years old).
Keating and others involved saw that the persuasive potential of these types of statements by the children was increased by the arguments of the proponents of the Defense of Marriage Act (DOMA) and Proposition 8, themselves. The amici were struck by the central argument of the laws' proponents in the briefing: It was based on the importance of marriage for the protection of stable families and children. The dissonance, as Keating puts it, between the focus of those arguments against same-sex marriage and the children's focus on their ordinary, unexceptional lives, which could be made more stable by marriage, was striking. Sarah Gogin, who signed on to the amicus brief herself, described the example set by the enduring relationship of her two dads:
Not only have my dads physically and financially supported me throughout my childhood, but they also have supported me emotionally, spiritually, and mentally as I have transitioned into adulthood. For over forty years, my dads have been living proof that true love does exist and that perseverance through adversity helps to define who we are. They have taught me to stay true to myself, to change for no one, and to be the best me that I can be.
Brief for Family Equality Council at 18 (quoting Sarah Gogin).
The young people also explained—at times with heartbreaking clarity—how the failure of the state or federal governments to recognize their parents' unions stigmatized them and their families by making them feel less worthy and by forcing them to question the validity of their families:
It really hurts me that my family isn't recognized by the government, it makes me feel like we aren't seen as a family, which makes me feel insecure. It's not fair to my parents, who love each other just as much as straight couples.
Brief for Family Equality Council at 27 (quoting Elizabeth Byrnes-Mandelbaum).
Both DOMA and Prop 8 essentially sentence my parents' relationship to second class status, not only making our family feel less worthy than others, but denying us rights that are enjoyed by other families headed by straight parents.
Id. (quoting Maggie Franks, 18 years old).
How can they tell me that my family doesn't count? That the relationship between my two dads that I have not only learned from and cherished, but also reaped the benefits of, isn't acknowledged on the federal level? That the love they share isn't deserving of the same protection and laws that a man and a woman receive?
Id. at 28 (quoting Ella Robinson).
Similarly, these descriptions struck at the heart of the justification for the laws, that DOMA and Proposition 8 were actually designed to protect the stability of the American family.
The Windsor Decision
The effects of the laws on children and youth, if not decisive, appeared to influence the majority in Windsor. Although the holding was based on equal protection jurisprudence, Justice Kennedy's questioning during the oral argument on Proposition 8 and statements in the Windsor opinion attributed legal significance to the rights of these children. It is important that he did not mention exactly what rights of children of same-sex parents were violated when the federal government stigmatized children and their families by its refusal to recognize same-sex marriages. But he acknowledged, at least implicitly, a legal injury—caused by the government—that befalls a child whose parents are not allowed to be married or whose marriage is not recognized by the federal government. Justice Kennedy wrote, "DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others." United States v. Windsor, 133 S. Ct. 2675, 2696 (2013).
The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their communities and in their daily lives.
Id. at 2694 (internal citations omitted).
The Court went on to describe other, more specific legal harm to children of same-sex couples whose marriages the federal government refused to recognize. Justice Kennedy explained some of the federal benefits available to heterosexual married couples that are not available to same-sex couples:
DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers' same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security (benefits available to a surviving spouse caring for the couple's child).
Id. at 2695 (internal citations omitted).
Although the Court did not mention the amici's arguments, the inclusion of these points makes clear that the voices of the children made an impact on the majority.
The Pro Bono Experience
The Family Equality Council was a long-standing pro bono client of Bryan Cave, so when the opportunity to submit an amicus brief came about, it was a natural choice to approach Keating. Although this work was significantly different from previous pro bono work the firm and Keating had performed for the organization, Keating was excited to take it on. And she says she was proud to work at the firm when support for the project came pouring in. The firm's willingness for Keating to take on the work and support for it have positively influenced her ongoing commitment to the firm.
Keating is currently working on another amicus brief for the Family Equality Council in the Ninth Circuit, which soon will be hearing cases from Hawaii and Nevada challenging those states' restrictions on same-sex marriage. The focus is the same: to make sure the voices of the children and youth are heard.
Keywords: litigation, children's rights, amicus curiae, Defense of Marriage Act, United States v. Windsor, Hollingsworth v. Perry, same-sex marriage, Proposition 8, federal rights, Family Equality Council