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Religious Tolerance logo

Same-sex marriage lawsuits: Hearing
before the U.S. 9th Circuit Court of Appeals

Testimony in the first of three federal cases:
Latta v. Otter from Idaho.

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Map of IdahoIdaho case: Susan Latta v. C. Otter:

A federal District Court in Idaho ruled that the marriage ban forbidding marriages by same-sex couples violated the 14th Amendment to the U.S. Constitutional and thus was unconstitutional. The case was appealed to the 9th Circuit Court of Appeals.

Attorney Monte Neil Stewart testified for the state. He said that same-sex marriages would undermine childrens' right to be raised by a father and a mother. He argued that at the core of the institution of marriage is a message that strengthens a child's "bonding right" with his biological parents. If the state allows same-sex couples to marry, he said that this:

"... weakens the social expectation of the child’s bonding right ... [and sends the] social message that fathers are not a valuable part of child rearing." 1

Full disclosure: I find this commnent demeaning. It implies that a child thrives fully only when she or he is genetically linked to both parents. I feel that this concept devalues my parenting skills and those of all other parents who have adoped children.

The "right" of a child to be raised by their genetic mother and father is often asserted by religious and social conservatives who feel that children thrive better when born into and raised to adulthood in a family headed by their biological mother and father.

Mark Regnerus at the University of Texas conducted a large scale study involving about 3,000 adults. They were interviewed to determine their marital status, employment status, income level, criminal history, sexual orientation, suicidal tendencies, experience with sexual abuse, experience with drug and alcohol abuse, and overall happiness. The study concluded that children raised from birth to the start of adulthood by same-sex parents fared much worse than did children raised similarly by opposite-sex parents. Religious and social conservatives heavily promoted this study as justification for prohibiting marriage by same-sex couples.

The Regmeris study was cited in many lawsuits where an individual or group was trying to prohibit same-sex couples from marrying. However, courts have often refused to consider this study as meaningful. The study's conclusions were based on a sample size of only two same-sex couples. The study has been repudiated by the Department of Sociology at the University of Texas -- Mark Regnerus'' employer. It has also been "condemned by the American Sociological Association."

Fortunately, a meaningful large scale study has since been conducted in Australia. It has shown that children raised by same-sex parents have a slightly better outcome then children raised by opposite-sex couples. From these results, it is difficult to see why children have a right to be raised by opposite-sex parents.

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Stewart also testified that same-sex marriage would undercut the message that a man who fathers a child should be in a relationship with the female mother. He said:

"This is a contest between two different messages. The message of man-woman marriage is: 'Men, you're valuable and important in the upbringing of the children you bring into this world. Women, you are valuable and important in the upbringing of children you bring into this world.' Genderless marriage does not send that message, indeed it undermines it." 1

The term "gendeless marriage" is a term commonly used by religious and social conservatives to refer to same-sex marriages. Such marriages are, of course, not genderless. They consist either of two male or two female adults. Each of the spouses very definitely has a gender. However, the term is widely used for its shock value, and to imply that marriages by same-sex couples are not natural.

A same-sex couple who want to have a child cannot procreate by themselves. The couple lacks either a supply of sperm or a uterus.

  • Two women who wish to have a child together can arrange to have one woman undergo:
    • In-vitro fertilization in which a man's sperm and a woman's ovum are combined in a lab dish, and the resultant fertilized egg is transferred to the woman's uterus. This is the same procedure that is used by many opposite-sex infertile couples. The first baby to result from this procedure was born in mid-1978.

      Often, for a family lead by two women or a woman and a man, the identity of the man who contributed the sperm is not known to the couple. This procedure does not seem to have produced any outcry demanding that the sperm donor be in a relationship with the pregnant woman, or with any children produced.

    • Artificial insemination in which sperm is introduced into a fertile woman's uterus or cervix. It is commonly used with opposite-sex couples where the male is infertile, or with female same-sex couples -- most often two lesbians, -- or with single women. In all cases, the sperm may come from an anonymous donor. This procedure a;sp does not seem to have produced any outcry demanding that the sperm donor be in a relationship with the pregnant woman, or with any children produced.

  • Two men who want to have a child together can arrange with a woman to be a surrogate mother.

Alternately, a same-sex couple or infertile opposite-sex couple can try to adopt. When I adopted a child in the 1960's every effort was made to keep the identities of the birth mother and birth father secret from us. Today, many adoptions are "open" and the birth records are made available to all parties. Again, there has been no insistence that the birth parents and the adoptive parents have any form of relationship.

But there is suddenly an outcry -- at least from the government of Idaho -- that the birth father be in a close and continuing relationship with the birth mother and child, and that the child be genetically related to her or his birth mother and birth father.

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Judge Marsha Berzon criticized Stewart, saying that the main message that is promoted when a state prohibits same-sex marriage is that such marriages are:

"... second rate. ... You're sending a message that these are less desirable families. That is what you're doing. That is what you say you're doing." 1

Judge Stephen Reinhardt asked Stewart:

"What about divorce. Does Idaho prohibit divorce because it sends a bad message? Why don’t you then pass a law banning divorce in Idaho, which may have more of an effect than this [ban?]" 2

Stewart responded: "They may."

Judge Ronald M. Gould asked:

"Where does the phrase ‘bonding right’ get its derivation? I don’t think it’s in the constitutional Bill of Rights."

Lawyer Deborah Ferguson, who represented the plaintiffs, said that children in families led by same-sex parents don't have the same protections as children of heterosexual couples. She said that they"

"... don't have two legal parents to protect them. That is sending a powerful message. That tells those children that their parents' marriages aren't worthy of respect. That's a very harsh message."

Currently, Nevada does not recognize in any way the relationships of loving, committed same-sex couples. The state treats them as simple roommates. If Idaho were to allow them to marry, as 29 states and the District of Columbia currently do, then they would have access to hundreds of state benefits and protections that are currently given only to married opposite-sex couples. They would also gain access to 1,138 federal government plans, benefits and protections for themselves and their chlldren.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Paul Elias, "Court Hears Arguments Over Gay Marriage's Impact," ABC News, 2014-SEP-08, at: http://abcnews.go.com/
  2. "History of in vitro fertilisation," Wikipedia, as on 2014-JUL-09, at: http://en.wikipedia.org/
  3. Dam Levine, et al., "Court sharply questions gay marriage bans from three U.S. States," Reuters, 2014-SEP-08, at: http://www.reuters.com/

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Copyright © 2014 by Ontario Consultants on Religious Tolerance 
Originally written: 2014-SEP-11
Latest update: 2014-SEP-11
Author: B.A. Robinson

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