Mixed Race Studies

“Teachable Moments”: The Use of Child-Centered Arguments in the Same-Sex Marriage Debate

California Law Review
Volume 98, Issue 1 (February 2010)
pages 121-158

Ruth Butterfield Isaacson, Associate
Leland, Parachini, Steinberg, Matzger & Melnick LLP, San Francisco

Child-centered arguments have played a central role in debates over expanding marriage rights throughout history. Opponents of interracial marriage argued in Loving v. Virginia that “mixed race” children from interracial households were physically and psychologically inferior and suffered from social stigmatization. Over forty years later, child-centered arguments again took center stage in the debate over same-sex marriage. The arguments initially focused on the harms to children raised by same-sex parents—specifically, that such children suffer from stunted development and social alienation. Over the years, these arguments gradually morphed into claims that same-sex marriage harms all children, because the prevalence of same-sex marriage in society and its integration in school curriculum confuses children about gender roles and the “true” meaning of marriage. Tracing the evolution of child-centered arguments from Loving through the recent battle for same-sex marriage in California’s November 2008 election on Proposition 8 offers valuable lessons to same-sex marriage advocates about the propriety and consequences of using child-centered arguments in defining the marriage rights of adults.

INTRODUCTION

It really is what we call a teachable moment.
—Interim Director of the Creative Arts Charter School in San Francisco, describing a first-grade field trip to City Hall to watch a lesbian wedding.

On Friday, October 10, 2008, a group of first-grade children from the Creative Arts Charter School in San Francisco took a field trip to City Hall. The children’s first-grade teacher, a lesbian, was set to marry her longtime girlfriend that morning. The director of the charter school saw the wedding as a “teachable moment”—an opportunity for the children to witness firsthand the progression of civil rights in America.

Many same-sex marriage advocates heralded the first graders’ excursion as another step toward the full acceptance and integration of same-sex individuals in society. But other supporters worried that the field trip, while well intentioned, was ill timed and potentially damaging to the same-sex marriage cause. At that time, the debate over same-sex marriage had reached a significant crossroads. Earlier that year, the California Supreme Court issued a landmark decision declaring that a same-sex marriage ban violated both the due process and equal protection provisions of the California Constitution. Opponents of same-sex marriage responded quickly and forcefully with Proposition 8, a ballot initiative to amend the California Constitution to define marriage solely as a union between a man and a woman. On the day of the field trip, polls on Proposition 8 showed close to a dead heat on the issue. Many same-sex marriage advocates feared that the “teachable moment” played directly into the hands of their opponents, giving them new leverage that could ultimately shift momentum in favor of Proposition 8.

Not surprisingly, just one week later, the field trip became the target of new television advertisements supporting Proposition 8. The leading organization behind the Proposition 8 campaign, ProtectMarriage.com, had cautioned for months that state recognition of same-sex marriage would, among other things, force public schools to include teaching same-sex marriage in their curriculum. In their view, the field trip was concrete and visible evidence that their fears had been realized. Playing on those fears, their ad took advantage of news footage of the wedding, particularly footage of a first-grade girl who appeared sad, and almost confused, by her teacher’s lesbian wedding. This lasting image was paired with the warning that “children will be taught about gay marriage unless we vote yes on Proposition 8.” The ad first aired on October 28, 2008; Proposition 8 passed by a 52-48 margin exactly one week later on November 4, 2008.

Appeals to child welfare are neither new nor exclusive to the same-sex marriage debate. Such appeals have also been raised in other family law disputes, most notably the fight for interracial marriage during the era of Loving v. Virginia, the United States Supreme Court decision striking down Virginia’s ban on interracial marriage. Opponents of interracial marriage claimed that the “mixed-race” children produced by interracial couples were biologically inferior, suffered abnormal social and psychological development, and endured stigmatization by their peers. Similarly, opponents of same-sex marriage have wielded such claims for almost two decades, although the substance of their child-based fears has evolved. Like the early arguments used by interracial marriage opponents, the first child-centered arguments in the same-sex marriage debate focused on the harms to children raised by same-sex parents—specifically, that such children suffer stunted social and psychological development and face stigmatization by their peers. Over the years, these concerns gradually morphed into fears about how same-sex marriage harms all children, because the increasing prevalence of same-sex marriage in society and its integration into school curricula confuse children about gender roles and the true meaning of marriage.

This Comment examines modern views of marriage and how child-centered appeals have influenced the discourse on expanding marital rights, particularly within the context of Loving v. Virginia, Goodridge v. Dep’t of Public Health, Hernandez v. Robles, In re Marriage Cases, the battle over Proposition 8 in California, and supporting case law and legislation. These sources evince an evolution in judicial conceptions of marriage and the childbased arguments that have been used to expand or constrict such conceptions, from anxiety over “mixed-race” children during the fight for interracial marriage to concerns in the same-sex marriage debate about the psycho-social well-being of children raised by same-sex parents and, ultimately, the effects of same-sex marriage on public school curricula. The Comment concludes with an analysis of modern marriage as defined by courts and society today, the intersection of Proposition 8’s success with contemporary marital attitudes, and the role of the judiciary in the fate of same-sex marriage…

…In defending its ban on interracial marriage, Virginia appealed to many of the same child-centered arguments that motivated the enactment of the ban 276 years earlier. In its brief to the Supreme Court, Virginia declared that states have an interest in preserving the “purity of the races and in preventing the propagation of half-breed children.” Acknowledging the reality of persistent racism, Virginia claimed its interest in keeping the races “pure” stemmed not from the repulsion interracial children invoke in society, but rather from the idea that interracial children were seen as outcasts and would be “burdened . . . with ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’” Virginia also emphasized the socioscientific consequences to interracial children, including the domination of racial inferiorities within children of mixed race and the social tension that it claimed was created when races of different socioeconomic backgrounds formed a family. Interracial couples also experienced higher divorce rates, Virginia argued, which would have negative effects on the (interracial) children produced by and raised within these families…

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