Skip to main content

Student Projects

Same Sex Marriage

Compiled by Jingyi Feng, Di Wu, and Yingnan Ma


Present Debate

Legalization of same-sex marriage is a hot issue these days. Nowadays in the U.S., there are overall 43 states, which legally prohibit marriage between same-sex couples, while 10 other states allow gays and lesbians to get married.
The reasonableness and legitimacy of same-sex marriage have raised continuous debate in the legal field. Many cases involve challenges to the constitutionality of statutes based on equal protection and due process. In general, the courts will consider one of the state interests that is related to marriage: the welfare of children. As we all know, marriage may benefit children from three aspects. First, marriage will bring children consistent financial support. Second, marriage may increase the social acceptance of children, which will also help their mental and personality development including self-esteem. Third, marriage may ensure stable parenting. Some people think it better for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. So marriage should be limited to opposite-sex couples. However, the opponents rely on social studies to show that no big differences of the children in same sex families and opposite sex families have been found. They grow up as well as those from opposite-sex families. The difficulty here is that more definitive results are difficult to gain because there’s not enough samples of children raised in same sex families. The debate on children’s welfare of same-sex marriage is continuing.
See what the Family Law professor says. Professor Bowman interview.

Case Study

Hernandez v. Robles
Court of Appeals of New York
May 31, 2006, Argued; July 6, 2006, Decided


The plaintiffs, 44 same-sex couples sued the New York city license-issuing authorities, claiming that by limiting marriage to opposite-sex couples, New York statutory law violated the New York Constitution’s Due Process and Equal Protection Clauses. The court held that although the right to marry was a fundamental right, deeply rooted in this Nation’s history and tradition, the right to marry someone of the same sex was not. So the New York Legislature has not restricted the exercise of a fundamental right. Where no fundamental right is at issue, legislation is valid under the Due Process Clause if it is rationally related to legitimate government interests. Since there is a rational relationship between the government’s interest in protecting the welfare of children and the limitation of marriage to opposite-sex couples, that limitation does not deprive same sex couples of due process of law. The court held as for the welfare of children, it was more important to promote stability, and that same-sex relationships were more unstable than opposite-sex ones; and (2) that it was better for children to grow up with both a mother and a father based on common sense. Further, under the applicable rational basis scrutiny, the restriction of marriage to opposite sex couples does not violate the Equal Protection Clause. Permitting marriage by all opposite sex couples does not create an irrationally overly narrow or overbroad classification. So the statute is not unconstitutional. (Hernandez v. Robles, court opinion, discussion, 18, 19)
The court’s opinion for admission of social evidence: plaintiffs offered Amicus briefs which refer to studies of same-sex parents and their children. Although some opponents of same-sex marriage criticized these studies, the court decided they need not consider the criticism, for the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. So the court thinks that they can hardly rely on such evidence.


Pedersen v. OPM
United States District Court for the District of Connecticut
July 31, 2012, Decided; July 31, 2012, Filed
CIVIL ACTION NO. 3:10-cv-1750 (VLB)

Plaintiffs, homosexual individuals, legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit to challenge Section 3 of Defense of Marriage Act (DOMA). The issue here is whether DOMA is a violation of the Fifth Amendment’s guarantee of Equal Protection. One of plaintiffs’ arguments is that Section 3 of DOMA bears "no rational or plausible connection to the welfare of children", as the statute denies marital benefits to same-sex married couples who are raising children. The court found out DOMA took expansive reach on the issue. Since DOMA does not preclude same sex couples from adopting children or prevent a woman partner from giving birth to a child raised by both partners, the court need not definitely address "whether or not children raised by opposite-sex marriages are on average better served." In consideration of all factors, the court found "no conceivable rational basis exists for the provision." The provision therefore violates the Fifth Amendment. (see DOMA, DOMA analysis, DOMA memo)
One couple of the plaintiffs is Suzanne & Geraldine Artis. They raised three boys in Clinton. It seemed they did pretty well. For more information, see this link:

Jackson v. Abercrombie
United States District Court for the District of Hawaii
August 8, 2012, Decided; August 8, 2012, Filed
Civ. No. 11-00734 ACK-KSC

Plaintiff N. Jackson and Janin Kleid, two women, filed suit against Hawaii Governor Neil S. Abercrombie and Loretta J. Fuddy, Director of Hawaii’s Department of Health. Plaintiffs challenge Hawaii Revised Statutes§572-1, which states that a valid marriage contract shall be only between a man and woman,, and Article I, Section 23 of the Hawaii Constitution which provides that the legislature shall have the power to reserve marriage to opposite-sex couples. Plaintiffs assert that these two laws violate the Equal Protection and Due Process Clause of the United States Constitution.
The Court held that a rational test should be applied here. First, the undeniable facts of biology meant that encouraging opposite-sex marriage had a unique and significant interest in prevent the decreasing number of children; Second, as the HFF asserted, it was rational for Hawaii to specially recognize opposite-sex relationships to promote the ideal that children be raised by both a mother and a father in a stable family unit, because children did best when raised by two biological parents; Third, allowing same-sex marriage will alter the definition and institution of marriage, and this will undermine the social understanding of the link between marriage, procreation and family structure. And under rational basis review, defendant HFF and Fuddy were not required to show that changing the institution of marriage might harm the state’s interest.

Defendants were entitled to summary judgment because Hawaii’s marriage laws were rationally related to legitimate government interests.

Social Science Evidence

  1. How Do The Same Sex Marriage Couples Get Their Children?
    Three situations:
    1. When one of the partners is the biological parent of a child born in the course of a prior heterosexual relationship (usually a prior marriage). In such situations, the new partner is the equivalent of a step parent in a marital unit.
    2. Where same-sex partners are living together and decide that one of them will become the biological parent of a child through some form of donor insemination, and that, after the child’s birth, they will serve as co-parents.
    3. Same-sex couples may seek to adopt a child to whom neither is biologically related. (Same-Sex Couples: Marriage, Families, and Children by Michael S. Wald, Stanford Law School, Working Paper No. 6 Date 12/99)

  2. Studies Relating to Children’s Welfare
    1. Research on stability of same sex marriage. The largest study, conducted in the late 1970’s by two sociologists at the University of Washington, included 3500 same-sex couples, 3500 married couples and 650 heterosexual cohabiting couples. Most of the cohabiting couples, both same-sex and opposite-sex, had been living together less than four years. The average length of the marriages, in contrast, was nearly ten years. At the follow-up, 78% of the lesbian couples, 84% of the gay male couples, and 83% of the opposite-sex couples were still together; 93% of the married couples were still together. The result shows little difference between the same sex couples and heterosexual couples. It suggests that because same-sex couples have to engage in a deliberate, planned, and often expensive process to have children, their relationships are more stable, as compared to those of heterosexual couples who can have unplanned pregnancies or, as others have stated, "accidental" pregnancies. (Same-Sex Couples: Marriage, Families, and Children by Michael S. Wald, Stanford Law School, Working Paper No. 6 Date 12/99)
    2. Research on influence of same sex marriage on children. The number of children in these studies is small and the samples non-random. But the findings are all consistent. The American Psychological Association, in 1995, concluded that the research indicates that children raised by gay parent(s) are not "disadvantaged in any significant respect relative to the children of heterosexual parents." From the results, we can see that children from same-sex families will not have serious emotional, intellectual, or social development problems because of their parent’s sexual orientation. The studies also find that children from same-sex families have no difficulties with getting along with other people.Another concern is their children may be more likely to engage in homo-sexual behavior, but the indication in several studies shows that the children living with gay parents were more likely to have a same-sex sexual encounter or relationship during their adolescence than were children from heterosexual families. But one thing is sure that recognizing the validity of same-sex couples’ marriages should increase the well-being of those children who recognize their sexual identity as being homosexual during their early teens or even earlier. Gay and lesbian youth also will benefit because they will be able to look forward to the opportunity of marriage.
    3. Different Opinions. Dr. Eggenbeen suggested that children raised by lesbian and gay couples were at heightened risk of a number of difficulties, including: "A. poverty or economic hardship; B. poor academic performance; C. behavior problems and conduct disorders; and D. premarital or teenage birth for girls." (Searching fro Harm: Same-Sex Marriage and the Well-Being of Children, UC Davis Legal Studies, by Courtney G. Joslin)


    Carlos A. Ball discussed in his paper "Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective" that social science research should be divided into three groups. The first area addresses the children’s psychological and social functioning, including matters such as behavioral adjustment, emotional well-being, self-esteem, school performance, and peer relations. The second area consists of the gender attitudes and interests of the children of lesbians and gay men. Finally, the third area relates to the sexual orientation of those children. The result shows that there’s no big difference between same sex marriage children and heterosexual children with respect to the first area. The empirical evidence either does not permit us to conclude that there is a clear association between the sexual orientation of lesbian and gay parents and both the gender attitudes/interests and the sexual orientation of their children.

    Government policies are wrong at first because the biased premise that same-sex orientation is inferior to opposite-sex orientation. "The State either does not have a legitimate interest in attempting to influence the sexual orientation of individuals, or in discouraging individuals (including adolescents) from engaging in same-sex as opposed to different-sex sexual conduct". So the inadequate social science evidence cannot justify that the functioning of raising healthy children is related to sexual orientation, and thus fails to satisfy the rational basis test.

    In conclusion, there is no evidence that same sex families are worse for children to be raised up in.

    Other Sources of information:

    Articles from Social Scientists

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

    Searching for Harm: Same-Sex Marriage and the Well-Being of Children

    The Use and Abuse of Social Science in the Same-Sex Marriage Debate


    US acceptance of gays/lesbians in the new normal

    Support for legal gay relations hit high

    Americans are for same-sex marriage for the first time

    Do you support same-sex marriage? (vote)

    Majority of Americans continue to oppose same-sex marriage 

    25% Americans are gay

    Gay-marriage eases slightly