Obergefell's Missed Opportunity

Authors

Catherine Smith, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

Law and Contemporary Problems

Publication Date

2016

Abstract

Part I of this article delineates the harms to children from marriage bans, harms that the Obergefell Court relied upon to recognize the fundamental right to marry for same-sex couples. Part II explains how Obergefell missed an opportunity to advance the constitutional rights of children by failing to invoke well-established equal protection law. This discussion briefly catalogues the omitted child-centered cases that warranted a more robust analysis of children's rights. This series of cases begins with the Brown v. Board of Education decision, and then turns to a number of post-Brown equal protection cases that explicitly prohibited state practices that penalized nonmarital children and children of undocumented parents because of the conduct of their parents. With this historical backdrop, it is easier to understand that the same-sex marriage bans were another iteration of government practices that punish children-this time, children of gays and lesbians seeking to marry. Part III explains that despite the Obergefell Court's failure to advance the equal protection rights of children of same-sex parents, there is reason to be optimistic. The opinion, by acknowledging the harms to children as relevant to their parents' constitutional claims, indirectly bolsters some of the central themes from these earlier cases. It also demonstrates at least some empathy for the plight of kids. To conclude, the article briefly offers three central themes from this collection of cases that are important to a renewed discussion on the rights of children.

Recommended Citation

Catherine Smith, Obergefell's Missed Opportunity, 79 Law & Contemp. Probs. 223 (2016).