Brief of Amici Curiae Scholars of the Constitutional Rights of Children in Support of Petitioners in Obergefell v. Hodges

47 Pages Posted: 5 Jul 2015 Last revised: 25 Jul 2015

See all articles by Catherine E. Smith

Catherine E. Smith

University of Denver Sturm College of Law

Lauren Fontana

University of Denver Sturm College of Law

Susannah Pollvogt

University of Arkansas, Fayetteville, School of Law

Tanya Washington

Georgia State University - College of Law

Date Written: March 9, 2015

Abstract

Supreme Court precedent establishes that the government may not punish children for matters beyond their control. Same-sex marriage bans and non-recognition laws (“marriage bans”) do precisely this. The states argue that marriage is good for children, yet marriage bans categorically exclude an entire class of children – children of same-sex couples – from the legal, economic and social benefits of marriage. This amicus brief recounts a powerful body of equal protection jurisprudence that prohibits punishing children to reflect moral disapproval of parental conduct or to incentivize adult behavior. We then explain that marriage bans punish children of same-sex couples because they: 1) foreclose their central legal route to family formation; 2) categorically void their existing legal parent-child relationships incident to out-of-state marriages; 3) deny them economic rights and benefits; and 4) inflict psychological and stigmatic harm. States cannot justify marriage bans as good for children and then exclude children of same-sex couples based on moral disapproval of their same-sex parents’ relationships or to incentivize opposite-sex couples to “procreate” within the bounds of marriage. To do so, severs the connection between legal burdens and individual responsibility and creates a permanent class or caste distinction.

Suggested Citation

Smith, Catherine E. and Fontana, Lauren and Pollvogt, Susannah and Washington, Tanya, Brief of Amici Curiae Scholars of the Constitutional Rights of Children in Support of Petitioners in Obergefell v. Hodges (March 9, 2015). U Denver Legal Studies Research Paper No. 15-28; Georgia State University College of Law, Legal Studies Research Paper No. 2015-20. Available at SSRN: https://ssrn.com/abstract=2626781 or http://dx.doi.org/10.2139/ssrn.2626781

Catherine E. Smith (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Lauren Fontana

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Susannah Pollvogt

University of Arkansas, Fayetteville, School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

Tanya Washington

Georgia State University - College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

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