Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective

74 Pages Posted: 9 Jun 2012 Last revised: 4 Jul 2021

See all articles by Carlos A. Ball

Carlos A. Ball

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: June 26, 2012

Abstract

This Article seeks to determine whether the social science literature on the children of lesbians and gay men precludes the government from relying on child welfare considerations to justify same-sex marriage bans and parenting restrictions affecting lesbians and gay men under the highly deferential rational basis test. Under that test, courts must uphold laws and regulations that have any conceivable basis of fact which is rationally related to a legitimate state interest. After comprehensively reviewing the social science literature, the Article concludes that the empirical evidence showing the lack of an association between parental sexual orientation and the psychological and social functioning of children is so conclusive and uniform that there is no conceivable factual basis for suggesting otherwise. The Article, however, also concludes that there are sufficient indicia of possible differences — between the children of lesbian/gay parents and those of heterosexual parents — in matters related to gender attitudes/interests and sexual orientation to satisfy the easy-to-meet factual component of the rational basis test. But this indicia of possible difference does not justify the differential treatment of lesbians and gay men in matters related to marriage and parenting because the government does not have a legitimate interest in either promoting specific gender attitudes and interests or in discouraging same-sex sexual orientations and conduct. At the end of the day, therefore, child welfare considerations constitute impermissible bases for the government’s differential treatment of lesbians and gay men in matters related to marriage and parenting, even under the highly deferential rational basis standard.

Keywords: children, gay adoption, gay foster care, gay parents, lesbian parents, rational basis test, sexual orientation, social science literature, same-sex mariage

Suggested Citation

Ball, Carlos A., Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective (June 26, 2012). William & Mary Bill of Rights Journal, Vol. 21, No. 3, 2013, Rutgers School of Law-Newark Research Paper No. 21, Available at SSRN: https://ssrn.com/abstract=2079991 or http://dx.doi.org/10.2139/ssrn.2079991

Carlos A. Ball (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States
973-353-3008 (Phone)

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