At the moment, commentators are busy opining about whether or not the Ninth Circuit will affirm Judge Walker’s decision not to stay his order pending appeal – thus allowing gay and lesbian couples to marry in California — and, in turn, whether the U.S. Supreme Court will take action. I will not join the fray here on that question (although it seems hard for Prop 8 proponents to argue irreparable harm if the order is not stayed, since Californians have been living with the thousands of civil marriages by same-sex couples, entered into the several month interim between the California Supreme Court’s In re Marriage Cases ruling and voter approval of Prop. 8). Instead, I would like to invite the attention of feminist scholars and anyone else interested in the marriage debate to Judge Walker’s extensive findings of fact as well as his conclusions of law about the irrelevance of gender to marriage and parenthood. These provide an opportunity for public education and commentary about marriage in America.
To that end, Linda Greenhouse, an experienced analyst of the U.S. Supreme Court, posted (last week) an insightful commentary “Hiding in Plain Sight,” in which she praises Judge Walker for “his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails.” She refers to the gender revolution in family law, noting Judge Walker’s conclusion that “gender is not relevant to the state in determining spouses’ obligation to each other and to their dependents,” and that “gender no longer forms an essential part of marriage; marriage under law is a union of equals.” Without making any predictions, she nonetheless takes the position that if Judge Walker’s opinion survives on appeal, it will be on the basis of his conclusion that to extend marriage to gay men and lesbians will not “redefine marriage,” since marriage has already undergone profound change “as the result of forces completely independent of federal judges.” Although Greenhouse does not mention it, I believe that another “hiding in plain sight” feature of Judge Walker’s opinion concerns the irrelevance of gender to parenthood and to child outcomes, or well-being.
As I noted in an earlier post (here), Judge Walker referred to the requirement of one man-one woman, in Proposition 8, as an “artifact” of an earlier understanding of state-mandated gender roles within marriage. Greenhouse is certainly correct that some of this gender revolution occurred independent of federal judges. However, it is undeniable that the Supreme Court’s rulings of the 1970s and 1980s were one catalyst to the considerable family law reform as legislatures reassessed sex-based classifications about spouses and parents. Social, economic, and cultural transformations surrounding gender roles and women’s place in society as well as state law reform that continued the erosion of coverture begun in the 19th century were other catalysts. Feminist scholars identify the cause and effect problem here – was the Supreme Court breaking new ground or simply catching up with society when it identifying sex-based rules as antiquated and outmoded stereotypes about the capacities of women and men? In either case, Walker’s findings and conclusions about the evolution of marriage away from a marital bargain based on legally fixed gender roles to a partnership of equals resonate with Supreme Court statements (e.g., the joint opinion in Planned Parenthood v. Casey) repudiating coverture and affirming the equal status of husbands and wives.
Another significant “hiding in plain sight” feature of Judge Walker’s opinion – not brought out by Greenhouse — concerns the irrelevance of gender to parenthood. From the beginning of the new wave of challenges by same-sex couples to civil marriage laws (say, beginning with Hawaii in the early 1990s), defenders of the one man-one woman requirement appealed to arguments about optimal childrearing: marriage provides the best environment for children by securing to the child a married biological mother and father. However, even in the Hawaii litigation, the government failed to support this argument and its expert witnesses conceded the competence of gay and lesbian parents. This optimal child rearing argument lost in several other states, such as Vermont and Massachusetts. (To be sure, it has prevailed in some other courts, including Hernandez v. Robles, when New York’s high court made some common sense observations about the value of a child having male and female role models.) And the Obama Administration disavowed the optimal childrearing interest in the ongoing litigation over DOMA.
Now, Judge Walker provides the most extensive findings of fact to date on the question of the relationship between sexual orientation and parenting. Based on what he found to be credible expert testimony (including that of Michael Lamb), which summarized the state of knowledge on this issue, he concluded that sexual orientation is not relevant to child outcomes. Walker also noted the introduction into evidence testimony by Prop 8 proponents’ own expert witnesses as to the basic competence of gay and lesbian parents. He also made a very important clarifying observation about social science and the relevant basis of comparison: studies relied upon by Prop 8 proponents’ expert did not compare children reared in opposite-sex marital homes with those raised by same-sex couples, but instead compared marital homes with single-parent, divorced, and foster families. Moreover, he concluded, while these studies might tell us something about the significance of marriage as a variable, they do not isolate genetics or biology or sexual orientation as a factor.
Looking at the relevant available studies, as presented by Prop 8 opponents’ experts, Judge Walker found that children raised by gay men and lesbians “are just as likely to be well-adjusted as children raised by heterosexual parents.” Moreover, “children of gay and lesbian parents would benefit if their parents were able to marry.” As his opinion recounts, the campaign for Prop. 8 frequently appealed to claims about gender complementary and the special and unique contributions of a mother and a father. Often, these complementarity arguments stem from a belief in God’s created order and the proper roles of men and women. (Similar arguments featured, as I have written elsewhere, in Congress in support of the Defense of Marriage Act.) However, Judge Walker concluded: “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.” Like a number of other states, moreover, California has taken steps to encourage and facilitate parenthood by gay men and lesbians (including making the parental rights and responsibilities of domestic partners the same as married parents, allowing second parent adoption and the use of assisted reproductive technology, and enforcing child support obligations against a nonbiological parent in a same-sex couple), thus undercutting the argument that optimal childrearing requires a biological mother and father and that that is the only pathway to parenthood that the state supports or recognizes. Given that the state’s interest in marriage includes forming stable households, Prop 8, he concluded, undermines that interest. Like the Massachusetts high court in Goodridge, Judge Walker concludes that withholding marriage’s protective framework from gay and lesbian parents harms these families; by contrast, extending that framework does not harm the families formed by opposite-sex couple marriages.
Greenhouse helpfully suggests that, whatever the ultimate fate of Judge Walker’s ruling on appeal, “the real contribution” of Judge Walker’s opinion may be to enrich and better inform “public conversation” about marriage. She has a point. In particular, the opinion provides ample resources for unearthing what might otherwise have been “hiding-in-plain-sight” facts about the significance of gender for contemporary marriage and parenthood.