Republican judges on the Eighth Circuit ignore the best interests of children

By Nancy Jane Moore

The Eighth Circuit Court of Appeals has struck down the only federal court opinion that rejected a state constitutional amendment prohibiting gay marriage. All three judges on the panel were appointed by Republican presidents.

Basing its decision on the ludicrous procreation argument that Diane dissected earlier today, the court rejected a decision by Federal District Judge John F. Bataillon that concluded:

[T]he deprivation occasioned by the passage of Section 29 [the Nebraska constitutional amendment] is the deprivation of the right to associational freedom protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution and the right to petition the government for redress of grievances, which encompasses the right to participate in the political process, also protected by the First Amendment.

Bataillon was appointed by President Clinton. His ruling did not require Nebraska to allow gay marriage, but only said it could not arbitrarily prohibit it in this way. Bataillon based his decision on Romer v. Evans, a U.S. Supreme Court decision that overturned a Colorado constitutional amendment that would have prohibited state and local governments from passing any laws that protected gays against discrimination.

The Eighth Circuit said that Romer only found there was no rational basis for a law as discriminatory as the Colorado one. Applying the rational basis test to the Nebraska amendment, it allowed the state to rely on its argument that:

[D]efining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in "steering procreation into marriage."

In agreeing to this reasoning, the Eighth Circuit said:

This argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a "responsible procreation" theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples who cannot. . . . Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State's justification "lacks a rational relationship to legitimate state interests."

But of course we can. Nebraska's justification ignores the best interests of children who are being raised by gay and lesbian parents. It ignores many other issues that Diane has raised in numerous previous posts on In This Moment, but let's focus on the interest of the children, because protecting children is considered so important under our law. In assigning custody in a divorce case, for example, the court is supposed to consider the best interest of the child -- not the parent, but the child.

Nebraska's constitutional amendment flies in the face of that legitimate state interest. It is not in the best interest of the children of gays and lesbians for their parents' relationship to be legally undefined. It can screw up their rights to inheritance, in the event one partner dies. It can screw up who gets custody in the event that parties split up. It can affect who can sign school reports or take a child to the hospital.

Most jurisdictions in this country now recognize that gays and lesbians are raising children. Gays are allowed to adopt children and to become foster parents. Gay parenting may still be controversial, but there is no large movement trying to stop it. Instead, we have a movement against gay marriage, which has the effect of denying those children the benefits -- so extolled in these opinions -- of having married parents.

This is an actual issue, and one much more serious than the vaunted "procreation" argument cited in the Eighth Circuit's decision and other rulings. The state's interest is in stable homes for its children, not in procreation. That argues in favor of gay marriage, not against it.

And by the way, state laws governing marriage weren't adopted to push procreation into marriage. They were adopted because marriage had existed as an institution for many centuries and the states found it necessary to deal with such things as inheritance and child custody. Procreation is an after-the-fact argument -- a made-up justification for limiting marriage to those of opposite sexes.

The Eighth Circuit also pointed out that the Romer decision did not make sexual orientation a suspect category for purposes of discrimination, as race is. I don't think any court decision has yet made sexual orientation a suspect category. For that matter, gender is not a suspect category -- if a state can show a rational basis for certain types of sex discrimination, it is permitted.

Had the Equal Rights Amendment to the U.S. Constitution been approved, sex would be a suspect classification. That might have opened the door to greater protection for sexual orientation. Right now, though, the only protection in both cases is the rational basis argument.

So long as courts keep applying the rational basis test irrationally by adopting made-up justifications such as procreation, we're going to continue to have significant discrimination against gays and lesbians. And, more importantly, against their children.