I'm really not that familiar with family law and only skimmed the literature so I probably have no idea what I'm talking about, but ...

Why haven't the children of a committed gay couple sued to let their parents get married?

When discussing the issue of gay marriage, the proponents frequently structure their arguments around the rights of adults to marry their chosen partner. Opponents frequently claim that this adult rights argument misses the point, since marriage is not about the adult couple, but rather is meant to recognize the state interest in procreation and child rearing. The reason for this is that if the state acknowledged that one of the purposes of marriage was to benefit heterosexual couples regardless of parental status, or to promote companionship, the justifications for excluding homosexuals from marriage would be much harder to make. For example, in Goodridge v. Dept. of Public Health, the State of Massachusetts claimed

three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a "favorable setting for procreation"; (2) ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex"; and (3) preserving scarce State and private financial resources.

Proponents of gay marriage should take the second argument ("It's for the children") seriously and see where it takes them.

First, let's note that children receive an awful lot of benefits from having married parents. For example, Goodrich noted:

Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth's strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, the fact remains that marital children reap a measure of family stability and economic security based on their parents' legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one's parentage. [citations omitted]

If you take the child rearing argument seriously, then one should look at the question of gay marriage from the point of view of a child. That is, can the state deny marriage to the parent of a child, thus denying the child the benefits that accrue to children with married parents, because that child's parent's desired partner is the same sex? In other words, can the state discriminate among children by providing the benefits of marriage only to children whose parents are heterosexual?

After all, is there any benefit the state might deny to children of single parents because the parent is homosexual? Is there any benefit the state could withhold from the child of a single lesbian mother but not from the child of a single heterosexual mother? If not, why can the state deny the benefits of marriage to the child, if marriage is about benefiting the child?

I would argue that discrimination based soley on the sexual orientation of a child's parent is unconstitutional under the equal protection clause of the Fourteenth Amendment as well as a denial of due process because of a status which attaches to the child at birth. Although there are no cases directly on point (that I am aware of), there are a number of cases regarding equal protection and benefits to children that might support my argument.

Standing

If, as many states contend, marriage is in essence a contract for the benefit of the child, I don't see why a child could not sue as a third-party beneficiary of the civil marriage contract. It would be hard to claim a child has no interest in the matter, since the entire basis of the government's argument is that the child is a third-party beneficiary. Of course, the gay couple should also be parties to the action, but the real party in interest would be the child.

Gay Parents Could Adopt Instead

Some may argue that this is not an issue, since the second gay parent may adopt (except in Florida, where the 11th Circuit permits the state to deny gay adoption while permitting gay foster parents). Two-parent gay adoption does provide many of the same benefits to children that gay marriage would, but it does not provide all of the benefits. Clearly, marriage and two-parent adoption are not identical nor equivalent. Even after marriage, one partner will likely deem it necessary to adopt the children of the other partner. In any case, if adoption and marriage were equivalent, there could hardly be a rational justification for permitting gay adoption but denying gay marriage. If they are not equivalent, then, for the state's argument that marriage benefits children to be valid, marriage must provide some additional benefits to children that adoption does not.

Equal Protection Argument

In Levy v. Louisiana, the Supreme Court held that a state may not deny children the ability to bring a wrongful death lawsuit based on their legitimacy. In fact, in general, the Supremes have held that discrimination based solely on illegitimacy is unconstitutional under the equal protection clause of the Forteenth Amendment.

In Levy, the state argued the purpose of the discrimination was "based on morals and general welfare because it discourages bringing children into the world out of wedlock." A pretty good argument actually, and very similar to the one used against gay marriage. It seems reasonable that a state could presume that a married two-parent family is generally superior to a single-parent or unmarried family and seek to discourage such unions. And certainly, the state is permitted great latitude in making such distinctions.

However, in Levy, the court noted that the "rights asserted here involve the intimate, familial relationship between a child and his mother." I see no reason to distinguish the importance of the rights asserted by a child seeking the benefits of married gay parents, which also involve an intimate, familial relationship. I do not see how the state can deny that a child being raised by a gay couple has the same intimate, familial relationship as did the family in Levy.

In determining the equal protection question the court asked why a child should be denied benefits merely because the child was illegitmate. "Why should the illegitimate child be denied rights merely because of his birth out of wedlock?" I ask why a child should be denied the benefit of having married parents merely because the child was born to a homosexual parent.

Some might argue that the homosexual parent could marry a partner of the opposite sex. But the child does not get to choose the parent's intimate and familial partner. This is the same as claiming that illegitimacy could be cured by the parents marrying. The child does not get to force his parents to marry.

In Levy, the harm (the death of the mother) was entirely unrelated to the status (legitimate or illegitimate) of the children. In contrast, one might argue, the harm (no benefits of marriage) is related to the status (gay or heterosexual parents). However, this is a circular argument. This would be the same as arguing that the harm (benefits of legitimacy) was related to the status (legitimate or illegitimate).

Even if one could distinguish Levy, there is still the problem that the distinction fails the rational basis test. After all, will denying the benefits of marriage to children of homosexuals discourage children from having homosexual parents?

One might argue that the ban would discourage adults from engaging in homosexual relationships. First, is this a legal goal for the state? After all, under Lawrence, homosexual sex is as permissible as using contraceptives (Griswold) or having an abortion (Roe). Is it permissible for the state to discriminate based on constitutionally protected acts? Could the state deny marriage to women who had abortions or used contraceptives?

Second, even if discouraging homosexuality is a legal goal, would it still be rational? As opponents of gay marriage tirelessly point out, people who are in a homosexual relationships will not "naturally" have children, so you don't have to worry about homosexual couples that don't want children. The goal of the law must therefore be to discourage homosexual couples who desire children from having children, which doesn't seem to jibe with states that permit same-sex adoption. Moreover, nature has already done as much discouragement as possible: homosexuals must take additional action to have children. Homosexuals know going into the game that having children will require an explicit decision to act on their part beyond that of many heterosexual couples. Given the explicit decision and action necessary for homosexuals to have children in the first place, it does not seem rational that denying benefits will discourage homosexuals who desire children from having children anymore than denying workman's comp to illegitimate children will discourage adults from having illegitimate children.

Finally, even if it did discourage such relationships, to put "this condemnation on the head of an infant is illogical and unjust." Weber v. Aetna Casualty & Surety Co.. Sure, the state wants to discourage unmarried people from having children, but you don't punish the children. If the state wants to discourage homosexuality, don't do it by denying benefits to the children of homosexuals.

In Gomez v. Perez, the court summed up the Fourteenth Amendment case against discrimination on the basis of illegitimacy thus, "a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." If the state may not discriminate against illegitimate children (who are obviously progeny from relationships the state seeks to discourage), why is it not invidious discrimination to deny the substantial benefits of marriage from children with homosexual parents?

Due Process Argument

Okay, so the equal protection argument doesn't float your boat. How about due process?

Opponents of gay marriage, including the state of Massachusetts, claim that they seek "the optimal setting for child rearing." That's great. However, even if a "a two-parent family with one parent of each sex" is the optimal setting for child rearing that does not mean it is acceptable to deny the benefits of marriage to children with gay parents. Even assuming that this very contentious assertion of the abstract superiority of heterosexual couples generally is legitimate, that does not mean the state may discriminate in the particular without violating due process.

In Stanley v. Illinois, the Supreme Court held that the state could not, consistent with due process requirements, merely presume that unmarried fathers in general and the petitioner in particular were unsuitable and neglectful parents. According to the court, parental unfitness must be established on the basis of individualized proof.

Well, it seems that the state of Illinois simply assumed that unmarried fathers aren't good parents, or conversely that a two-parent family with one parent of each sex is the optimal setting for child rearing. Seems pretty reasonable and sounds familiar. However, even if the goal is reasonable, the means to achieve the goal are not.

In Stanley, the Court asks, "What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case?" Sure, the state wants to discourage illegitimacy and to ensure the welfare of children, but given that there already is a particular illegitimate child does it make sense to strip the child from the particular unmarried father without cause? The Court asks, "What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case?" Indeed.

Ok, so the State has an interest in encouraging two-parent heterosexual families for child rearing. Yet, given that you have a particular child with a homosexual parent desiring marriage, what is the state interest in preventing a child from having married parents without a hearing designed to determine whether the parents are fit in a particular case?

"It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents. It may also be that Stanley is such a parent and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children." [footnotes omitted]

It may be, as the State insists, that most homosexual couples are unsuited and neglectful parents. It may also be that a particular couple is such and that the children would not benefit from the marriage of the couple. But all homosexual couples are not in this category; some are wholly suited to rearing children.

If, as the states claim, marriage is about optimum child rearing, they go about it in a strange way. The state assumes that all heterosexual couples are fit to raise children as a married couple, denying them custody of children only upon proof of neglect. Interestingly, even if a state takes children from a married couple that is guilty of neglecting those children, the state does not then dissolve the marriage, even though neglecting children is proof positive that the couple is not an optimum unit (to say the least). Yet the state assumes that homosexual couples are not fit to raise children as a married couple with no proof.

Seems to me that denying marriage to a child's gay parent without a hearing deprives the child of equal protection. Children of heterosexual parents can gain the benefits of marriage without a hearing, but children of homosexual parents cannot gain those benefits at all.

Conclusion

The state has an interest in protecting the welfare of children, of this there is no doubt. Many states claim that the purpose of marriage is to promote the welfare of children. In other words, the benefits of marriage are for children. Given this, is it permissible for the state to provide substantial benefits to children generally, but deny them to the small subset of children with homosexual parents?

Children should have the right of the benefits of marriage where they have a parent willing to be married. Obviously the state can't force a parent to enter an unwilling marriage, but can the state deny marriage benefits to children with willing parents?

Opponents of gay marriage claim such unions are sub-optimal for child rearing. But it is odd to make such argument from the point of view of a child with a homosexual parent. Even if a family with a homosexual couple and child is sub-optimal, does it make sense that the state should reduce benefits to that family? If anything, we should provide more benefits to the children of sub-optimal families. That is like saying financially stable families are the optimal setting for child rearing, therefore, the state will subsidize financially stable families and deny benefits to impoverished families.

This is why I wonder why the child of a homosexual couple has not brought a lawsuit protesting the lack of marriage for the child's parents.