Windsor Amicus Brief by Scholars of the Constitutional Rights of Children

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Written by: Susannah PollvogtCatherine SmithTanya Washington

Later this month, the United States Supreme Court will hear oral argument in United States v. Windsor, better known as the challenge to the federal Defense of Marriage Act.  SALT members Catherine Smith and Susannah Pollvogt (both of the University of Denver Sturm College of Law) along with Tanya Washington (of Georgia State University College of Law) recently filed an amicus brief in the case, focusing on the effect of DOMA on the rights of children of same-sex couples.

DOMA was enacted in 1996 during the same-sex marriage panic following the Hawai’i Supreme Court’s tentative suggestion that the principle of equal protection of the laws might require states to allow same-sex couples to wed.  In response to this development, Congress rushed to pass legislation with no other purpose than to make certain that, even as states evolved to permit same-sex marriages, the federal government could continue to refuse to recognize these unions.

There are many, many ways to attack the constitutionality of DOMA.  First, it is an unprecedented interference by the federal government in the state-law realm of marriage policy.  Historically, the institution of marriage has been regulated by the states and, barring any unconstitutional regulations (such as laws prohibiting interracial marriage), the federal government accepts the definition of marriage that states elect.  Thus, DOMA represents a significant intrusion into states’ autonomy.  Second, DOMA represents unjustified discrimination against homosexuals.  Whatever may be the traditional understanding of marriage, in 2013, there is no rational basis for allowing heterosexual couples to marry while preventing homosexual couples from doing so.  Third, by excluding homosexual couples who are in all other relevant respects similarly situated to heterosexual couples, DOMA impermissibly expresses bare moral disapproval of homosexuals—something the law does not permit.

But there is another, damning critique of DOMA that has received less attention, and that is the focus of the amicus brief we filed today.  The Supreme Court—which has been ambivalent and inconsistent on so many issues of constitutional law—has consistently held that laws may not punish children for the  moral disapproval of the conduct of their parents.  Thus, laws may not prevent non-marital children from receiving benefits upon the death of a parent to express moral disapproval of childbirth out-of-wedlock, or in an effort to “incentivize” adults to marry.  Nor may the laws deny public education to children because their parents are present in the country illegally, or in an effort to stem the tide of illegal immigration.  Nor may a family court take custody of a child away from the mother because society disapproves of the mother’s interracial relationship.

The federal government argues that DOMA is benefits children.  This is an odd reason to give in support of DOMA because DOMA does nothing to enhance the flow of benefits to children; rather, DOMA functions to exclude an entire sub-class of children from this type of support, simply because the children’s parents are of the same sex.

There are many reasons the United States Supreme Court should find DOMA unconstitutional.  Its effect on the children of same-sex couples—both in excluding their families from benefits and in stigmatizing their families as lesser than other families—is perhaps one of the most compelling.