Prop 8 and Judicial Overreach

In his ruling overturning California’s Proposition 8, Judge Vaughn Walker wrote that the amendment failed the legal test that is a rational “rational basis” for limiting marriage to heterosexual couples. According to Walker, all it did was “enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Well, if by “superior,” you mean better for safeguarding the future by caring for the next generation, well, then, “yes,” opposite-sex couples are indeed superior to same-sex couples.

Concluding otherwise requires denying what we do know and claiming to know what we can’t know.

Let’s start with what we already know: an intact two-biological-parent household is the best environment for raising children. The evidence is overwhelming. On average, children raised outside of a stable two-biological parent household complete fewer years of schooling and are more likely to drop out of school, and are more likely to “commit delinquent acts,” abuse alcohol and drugs, and live in poverty than kids growing up in intact families.

This isn’t to say that children can’t be successfully raised outside of traditional families – but a society where many children are raised outside of traditional families will experience more “adverse outcomes.”

Another thing we know is that the kids whose circumstances most resemble those raised in same-sex households, the children of sperm donors, are struggling in ways that were predictable. A recent study found that “[O]n average, young adults conceived through sperm donation are hurting more, are more confused, and feel more isolated from their families. They fare worse than their peers raised by biological parents on important outcomes like depression, delinquency and substance abuse.”

Given what we know, judge Walker’s dismissal of concerns about the impact of being raised in a same sex household was more akin to a statement of faith than a finding of fact. Sperm donation has been around a lot longer than same-sex parenting and it’s only recently that its impact, however, can be assessed.  Same-sex parenting on a wide scale is simply too recent to draw any rational conclusions about its medium-to-long term impact on kids.

Even if our worse fears don’t materialize, Judge Walker still overreached. Unlike race, ethnicity, and religion, sexual orientation is not what the Supreme Court calls a “suspect classification.” Whereas in these instances, disparate treatment can only be justified by a compelling societal interest, all proponents of Proposition 8 had to prove was that there was a rational basis for the legislation.

When Walker ruled that Proposition 8 fails to advance any rational reason for denying gays and lesbians marriage license, he was simply ignoring all of the best evidence available. Given the centrality of child-rearing and the well-documented concerns about the impact of non-traditional arrangements on children’s well-being, Proposition 8 certainly met the “rational test” standard.

But there’s also clear evidence that denying what we know and claiming to know what we can’t know—now that is irrational.

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