In U.S. gay marriage cases, children emerge in the limelight

Sun Jul 20, 2014 2:12am EDT
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By Joan Biskupic

WASHINGTON (Reuters) - With legal battles over gay marriage simmering across the United States, proponents are showcasing a group they had once sidelined: children.

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.   Continued...

A boy holds up a sign during a rally by gay rights supporters on the steps of the Pennsylvania State Capital after a ruling struck down a ban on same sex marriage in Harrisburg, Pennsylvania, May 20, 2014.   REUTERS/Mark Makela