Emphasis on children marks the Supreme Court opinion invalidating a U.S. law that had defined “marriage” as the union of a man and a woman, and so denied federal benefits to a widow in same-sex marriages that had been recognized by the state of New York. (photo credit)

The harm to such spouses of course was a concern. Citing his 2003 opinion in Lawrence v. Texas, Justice Anthony M. Kennedy wrote in his opinion for the Court:

‘The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.’

He continued:

‘And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’

The opinion later condemned the law on the further grounds that it “brings financial harm to children of same-sex couples,” and that it “instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

As noted by Wall Street Journal reporter Jess Bravin, this emphasis was remarkable in part because opponents had argued that the interests of children required continuing bans on gay marriage. Bravin wrote with regard to that argument: “The court turned it on its head.” He added that Kennedy’s account of “concrete harms” that children suffered gave foundation to the theories on which Lawrence was based – an argument that, I argued in this post, drew influence from the views on liberty and equality harbored by the Justice who assigned Lawrence to Kennedy, John Paul Stevens.

In looking for an earlier instance in which the Court had struck a law because it operated to injure children of disfavored parents, Bravin pointed to Levy v. Louisiana (1968), involving the effort by children to recover for the wrongful death of an unwed parent. A more recent example that jumps to my mind is Palmore v. Sidoti (1984), decided fewer than 4 years before then-Judge Kennedy was sworn in as an Associate Justice at the high Court. Stevens took note of this case in a 2005 speech at Fordham Law School:

‘Equally dramatic is the contrast between the final ruling of the unanimous Court in Palmore v. Sidoti and the Court’s reaction to the case when it first appeared on the conference list. The case involved a dispute between divorced Caucasian parents over the custody of their daughter. In the 1980 divorce decree, custody of the three-year-old child was awarded to the mother, who later married an African-American. Without any evidence that the mother had become unfit, the Florida court entered an order transferring custody to the father in order to protect the child from anticipated “social stigmatization.”
‘By a vote of 8-1 – and I am proud that I was the one – the Court denied an application to stay the mandate of the Florida court transferring custody. However, after granting certiorari and hearing argument, we unequivocally held that the effects of racial prejudice, however real, could not justify the removal of an infant child from the custody of her natural mother. Of course, despite the clarity of the Court’s opinion, that is exactly what its earlier refusal to stay the order modifying custody had done.’