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Current Issue : Spring 2010

Putting Equal Access to Work

A court applying equal access would require states that exclude gay and lesbian couples from civil marriage to give strong reasons for that policy. The justifications that states would offer probably would not differ too much from what we have seen already in same-sex marriage litigation. In earlier cases, the result usually turned on whether the court applied the sort of heightened standard that we are proposing. Again, no high state court that has applied any sort of heightened review in recent years has found that there is adequate justification for denying same-sex couples the legal benefits of marriage (although some courts have permitted states to establish separate statuses such as civil unions). In other words, much of the legal work is done by the standard of review, at least ostensibly. Nevertheless, we will now briefly show how our approach might be applied.

In recent cases, states have offered two main justifications for laws that deny same-sex couples a right to marry. First, they note that only different-sex couples can procreate accidentally and they claim that marriage is therefore needed to provide stability to different-sex couples who might otherwise be inadvertent and irresponsible parents. Officials contend that same-sex couples, who typically have children through laborious and necessarily preplanned processes like artificial insemination or adoption, do not need the same state incentives.

Not only does this “accidental procreation” argument rest on unproven assumptions about human behavior, it is also dramatically under- and overinclusive. On the one hand, many different-sex couples who are permitted to marry are incapable of having children—think of elderly individuals or infertile men and women—or those who simply do not want to be parents. On the other hand, thousands of same-sex couples are raising children in America today. Doesn’t excluding them from civil marriage actually hurt the state’s goal of promoting stability for families with children?

The second rationale that states put forward is that different-sex couples provide the optimal environment for childrearing. Again, this argument ignores the fact that prohibiting same-sex couples from marrying in no way guarantees that children will be raised by both parents. But more importantly, numerous social science studies have found that children do just as well with parents of the same-sex as parents of different-sexes. Gay and lesbian couples are every bit as capable of providing loving, skillful guidance to their children.

States have an even more difficult time justifying laws that extend all the material benefits of marriage to same-sex couples under the rubric of civil unions or domestic partnerships. These “separate but equal” arrangements still deny the important expressive benefits of civil marriage, relegating couples to second-class status. Testimony by children suggests that this two-tier system actually hurts families by sending a message that same-sex parents are less valuable or respected.

Equal access, in sum, offers real advantages over the arguments that have dominated the litigation so far by providing courts a way to invalidate different-sex marriage requirements that is moderate, well-grounded in precedent, and reflective of the real harms at stake—and it offers a better conceptual framework for thinking about civil marriage in general. We hope not only to influence current litigation over same-sex marriage rights, but also to offer lawyers, judges, and other commentators a framework for thinking about other nontraditional family structures in the future.

1 Nelson Tebbe & Deborah A. Widiss, Equal Access and the Right to Marry, 158 U. Pa. L. Rev. 1375 (2010).
2 318 U.S. 1 (1967).
3 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
4 Skinner v. Oklahoma, 316 U.S. 535 (1942).
5 Zablocki v. Redhail, 434 U.S. 374 (1978).

Deborah A. Widiss joined the faculty of the Indiana University Maurer School of Law after two years as a Visiting Assistant Professor at Brooklyn Law School. Her research interests include family law, employment law, and the significance gender and gender stereotypes in the development of law and government policy. Prior to teaching, Widiss was a staff attorney at Legal Momentum (formerly NOW Legal Defense and Education Fund), where she authored several amicus briefs in support of marriage rights for same-sex couples. Earlier in her career, Widiss worked for the Campaign for Fiscal Equity and for Lawyers Alliance for New York. She clerked for Judge Allyne R. Ross of the U.S. District Court for the Eastern District of New York.

In 2009, Widiss was a winner of the Association of American Law Schools’ annual scholarly papers competition, and in 2008, she was honored with a Dukeminier Award from the Williams Institute at UCLA School of Law, which recognizes the best sexual orientation and gender identity law scholarship published in the previous year. Widiss received her law degree from Yale University.