Those wailing over one of the consequences of the recent election, the change in Virginia’s position on the Marshall-Newman amendment, would have us believe that there would be no one else defending it in court. But of course that wasn’t true. District court Judge Arenda Wright Allen’s order for the oral arguments in Bostic v. Rainey that took place Tuesday shows that the time allotted to defenders of the amendment was double the time allotted to the plaintiffs seeking to overturn it. In addition, attorneys for proponents of the amendment were provided by the Alliance Defending Freedom (formerly Alliance Defense Fund), a well-funded legal “ministry” that claims to win nearly 80% of its court cases. The problem faced by amendment proponents was not a lack of competent legal counsel. The problem was the lack of a constitutionally permissible justification for walling off a class of people from the fundamental right of marriage, based only on their orientation.
An argument from religion, or tradition, or one based on moral disapproval of gay people, or a wish to discourage gay people from existing, simply won’t survive scrutiny; those days are over. What the proponents of such bans have to show is that there is an important state interest that justifies treating people who want to marry a partner of the same sex differently from people who want to marry a partner of a different sex. And the argument they’ve settled on is the idea that “children do better with a mom and a dad.” You can see the talking point prominently displayed on the signs of protesters outside the courthouse; it was also expected to do the heavy lifting inside. As VFF’s Victoria Cobb put it, the proponent’s attorneys argued that “the government’s interest in marriage is in the upbringing of children by a mother and a father.”
The obvious problem with this argument is that the social science research and the professional medical and child welfare associations say that it’s not true: Children raised by two parents of the same sex actually do as well, or better in some cases, than children raised by two opposite sex parents.
