Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective

By Ball, Carlos A. | The William and Mary Bill of Rights Journal, March 2013 | Go to article overview

Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective


Ball, Carlos A., The William and Mary Bill of Rights Journal


This Article seeks to determine whether the social science literature on the children of lesbians and gay men precludes the government from relying on child welfare considerations to justify same-sex marriage bans and parenting restrictions affecting lesbians and gay men under the highly deferential rational basis test. Under that test, courts must uphold laws and regulations that have any conceivable basis of fact which is rationally related to a legitimate state interest. After comprehensively reviewing the social science literature, the Article concludes that the empirical evidence showing the lack of an association between parental sexual orientation and the psychological and social functioning of children is so conclusive and uniform that there is no conceivable factual basis for suggesting otherwise. The Article, however, also concludes that there are sufficient indicia of possible differences-between the children of lesbian/gay parents and those of heterosexual parents-in matters related to gender attitudes/interests and sexual orientation to satisfy the easy-to-meet factual component of the rational basis test. But this indicia of possible difference does not justify the differential treatment of lesbians and gay men in matters related to marriage and parenting because the government does not have a legitimate interest in either promoting specific gender attitudes and interests or in discouraging same-sex sexual orientations and conduct. At the end of the day, therefore, child welfare considerations constitute impermissible bases for the government's differential treatment of lesbians and gay men in matters related to marriage and parenting, even under the highly deferential rational basis standard.

INTRODUCTION 692

I. THE PSYCHOLOGICAL AND SOCIAL FUNCTIONING OF CHILDREN 702

A. Summary of the Social Science Studies 702

B. Assessing the Empirical Literature from the Rational Basis Perspective 715

C. Questions of Methodology 717

1. Sampling Issues 718

2. The Age of the Children 721

D. The Regnerus Study 724

E. Questions of Family Optimality 728

1 . The Claim that Children Do Better When Raised by Biological Parents 730

2. The Claim that Children Do Better When Raised by a Female Parent and a Male Parent 733

3 . The Claim that Children Do Better When Raised by Married Heterosexual Couples 735

II. THE GENDER ATTITUDES AND INTERESTS OF CHILDREN 737

A. Summary of the Social Science Studies 738

B. Assessing the Empirical Literature from the Rational Basis Perspective 744

C. The Illegitimacy of the State 's Promotion of Particular Gender Attitudes and Interests 746

III. THE SEXUAL ORIENTATION OF CHILDREN 750

A. Summary of the Social Science Studies 752

B. Assessing the Empirical Literature from the Rational Basis Perspective 755

C. The Illegitimacy of the State 's Efforts To Discourage Individuals from Developing a Same-Sex Sexual Orientation or Engaging in Same-Sex Sexual Conduct 757

1. Discouraging Same-Sex Sexual Orientation or Conduct 757

2. Discouraging Same-Sex Sexual Conduct Among Adolescents .... 761

CONCLUSION 764

INTRODUCTION

When the Supreme Court in 1967 struck down antimiscegenation statutes in Loving v. Virginia,1 it did not reference the empirical literature on the children of interracial relationships.2 Indeed, empirical questions regarding interracial families played no role in the Court's conclusion that antimiscegenation statutes violated the equality and liberty rights of individuals under the Constitution.3

In contrast to how the Supreme Court dealt with the interracial marriage question, contemporary courts have frequently turned to the social science literature on parenting by lesbians and gay men in assessing the constitutionality of same-sex marriage bans and parenting restrictions affecting sexual minorities. Some of these courts have relied on the empirical literature's findings to strike down the laws in question. …

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