Main content

Emory Law News Center

Public Interest

Emory Law Amicus Brief Says Same-Sex Marriage Bans Harshly Affect Children

Emory University School of Law |
Emory Law’s Child Rights Project filed a friend of the court brief with the U.S. Supreme Court Feb. 28 which argues gay and lesbian youths, and the children of parents who so identify, are deeply and adversely affected by state and federal laws that ban same-sex unions.

The brief’s emphasis is that the impact upon gay and lesbian youth, and the children of lesbian and gay couples, is rarely considered when same-sex legal precedents are decided, but should be.

“The purpose is to provide the Court with perspectives of children and youth growing up in families with same-sex parents, as well as LGBTQ youth growing up in the shadow of DOMA and state laws prohibiting same sex couples from marrying,” said Child Rights Project Director and L.Q.C. Lamar Professor of Law Barbara Woodhouse.

A large class—six million Americans—have at least one parent who identifies as lesbian, gay or bisexual, the brief says.

"And because nearly 20 percent of the 650,000 same-sex couples living in the U.S. are currently raising children, there are approximately a quarter of a million children who are currently being raised in same-sex-parented families," the brief continues. Those families live in every state and 93 percent of all U.S. counties.

The brief was filed jointly with the Family Equality CouncilColageOur Family CoalitionGay, Lesbian, and Straight Education Network; the Center on Children and Families; and Sarah Gogin, the 24-year-old daughter of two fathers who’ve been in a committed relationship for more than 40 years, who were married in 2008.

To support the brief, Emory Law students created an online study which elicited frank and often, stark, insights from 167 gay, lesbian and bisexual responders ages 13 to 26.

Emory Law’s Brian Kaufman 14L and Margaret Riley 14L teamed with University of Florida’s Levin School of Law Professor Nancy Dowd and students Kathryn Brightbill and Nick Vargo to build and administer the study.

They concluded that California’s Proposition 8 law and the federal “Defense of Marriage” Act both violate equal protection and substantive due process rights under the 14th Amendment, and argue the Court should affirm the Ninth Circuit decision in Hollingsworth v. Perry and the Second Circuit's decision in United States v. Windsor.

The laws’ suggestion that non-straight relationships are illegitimate or illegal contributes to a culture of ostracism and bullying, and influences non-heterosexual children and teens who already much more likely to be homeless, suicidal and abuse alcohol or drugs, the study says.

The study found five themes emerged on how DOMA and its lesser treatment of non-heterosexual unions affects gay, lesbian, bisexual and questioning youths:

  • Stigmatization by peers and society;
  • Hardship in defining their sexual identity;
  • Difficult life decisions imposed on them as a result of DOMA;
  • The effect denial of same-sex marriage has on a young person’s identity;
  • Fears and hopes for the future to be accepted and supported as full citizens.

“The federal government’s interests are not legitimized by a tradition that is grounded in prejudice, discrimination, and legal animus enshrined by DOMA,” the study says.

"Decades of social science research confirms that children of LGBT parents have similar levels of psychological adjustment and are no more likely than their peers raised by heterosexual parent to report behavioral issues. Several studies have even suggested that children raised by LGBT families are better adjusted psychologically than their peers," the brief adds.

Woodhouse is named as counsel with Bryan Cave LLP attorneys Wiliam J. Hibsher, K. Lee Marshall, David Greene and Katherine Keating; and Emily Hecht-McGowan of the Family Equality Council.

Related Links

Professor Woodhouse’s profile »

Read the brief and study »