Many opponents of marriage equality probably winced when one of their leaders recently demeaned U.S. Chief Justice John Roberts and other adoptive parents by describing them as providing "by far the second-best" type of families for children.
Extolling the superiority of families headed by biological parents, John Eastman, chairman of the National Organization for Marriage and a law professor at Chapman University, told the Associated Press: "Certainly adoption in families headed, like Chief Justice Roberts' family is, by a heterosexual couple, is by far the second-best option."
Eastman and other advocates opposed to marriage equality for same-sex couples are counting on Roberts and Justice Clarence Thomas, also an adoptive parent, to rule against marriage rights for same-sex couples.
What opponents of same-sex marriage likely wouldn't admit, however, is that Eastman's comments are consistent with what they have been arguing all along that biological-parent families are better.
This claim will be a key focus of oral arguments made to the Supreme Court beginning today in two same-sex marriage cases. One of the cases United States v. Windsor involves a challenge to Section 3 of the federal Defense of Marriage Act, or DOMA, which denies more than 1,000 federal marital rights and responsibilities to validly married same-sex couples. The other Hollingsworth v. Perry is a challenge to California's same-sex marriage ban, Proposition 8.
Although the legal issues in both cases are distinct in some ways, the defenses are quite similar. In both cases, opponents of marriage equality are arguing that the core purpose of marriage is and always has been to promote and specially protect families with two biological parents. These families can and should be specially protected and promoted, they argue, because it is preferable or better for children to be raised by their two biological parents.
So, for example, the members of Congress defending DOMA argue in their brief, "When the government offers special encouragement and support for relationships that can result in mothers and fathers jointly raising their biological children, it rationally furthers its legitimate interest in promoting this type of family structure." Because the goal of marriage is to promote biological parenting, the argument continues, it is permissible to exclude same-sex couples from marriage or marital benefits because they cannot fulfill this goal.
To be sure, until Eastman's quote, those opposed to same-sex marriage have generally steered away from stating the flip side of this argument the notion that the government thinks that other types of families, including adoptive families, are clearly inferior. But that, in fact, is the underlying although, again, largely unstated foundation for their position.
Not only is this argument offensive, it is simply not supported by social science or by state or federal law or policy. Among the many briefs filed with the Supreme Court was one filed on behalf of eight health and child welfare organizations, including the American Psychological Association, the American Medical Association and the American Academy of Pediatrics.
As these organizations explain in their brief, decades of research have "elucidated the facts that are associated with health adjustment among children and adolescents." Rather than singling out biological connections as being critical, these studies make clear that the "three most important (factors) are (1) the qualities of parent-child relationships, (2) the qualities of relationships among significant adults (e.g., parents) in children's or adolescents' lives, and (3) available economic and other resources." Indeed, contrary to Eastman's suggestion, the data reveal that "biological relatedness between parents and children is of little or no predictive importance."
Moreover, as I and other family law professors explain in our brief to the Supreme Court, these claims simply do not reflect state or federal policy on families. It simply is not the case that states or the federal government, now or in the past, has sought to specially promote or prefer biological-parent families over all other kinds of families. To the contrary, both the states and the federal government have long supported and facilitated families created through adoption, like the family of Chief Justice Roberts and his wife, who are parents of two adopted children Jack and Josie. For example, the federal government provides special tax credits for adoption-related expenses and tax subsidies for families who have adopted children with special needs.
And even for families that are not created through adoption, while children are often raised by their biological parents, biology is not always the most important factor in deciding what is best for that particular child. Instead, as the California Supreme Court has stated on numerous occasions, an established parent-child relationship can be even more important than a biological connection; what matters to the child is the relationship, not the genetics. For children over the age of 2, the state Supreme Court has explained, "the familial relationship is considerably more palpable than the biological relationship." Because parent-child relationships are so important to children and to their well-being, these relationships should not "be lightly dissolved."
And it is not only the states that have recognized the importance of parent-child relationships. The U.S. Supreme Court likewise has approved of family law rules that do not always elevate biology over all other factors. Like the decisions of the California Supreme Court, the U.S. Supreme Court recognizes that in some circumstances, it is necessary to protect parent-child relationships even when they are not premised on a biological relationship. Indeed, rather than suggesting that biology is the end-all and be-all, what the U.S. Supreme Court has said about biology is that "the mere existence of a biological (parent-child) link" does not in itself create a constitutionally protected interest. To merit constitutional protection, there must be some other link or relationship between the biological parent and the child.
Sometimes the truth hurts. If Eastman's revelation of the essential gist of his side's position personally hurts Chief Justice Roberts and Justice Thomas enough to make them critically analyze and ultimately reject what they are saying the Constitution means and allows, the gain will have been worth the pain.
Courtney G. Joslin is a professor of law at the UC Davis School of Law. She is the co-author of "Lesbian, Gay, Bisexual and Transgender Family Law."