09/25/2014 02:21 pm ET Updated Feb 02, 2016

Focus on the Family

I'd like to present a thought experiment with two different questions posed by two different judges during oral arguments on the legal right of gay couples to marry. Their inquiries relate to whether it is constitutionally permissible to deny gay couples the right to marry because of purported concerns relating to the welfare of children:

Judge A: [I]f two couples want the same baby, and they're otherwise identical, but one is a same-sex couple, the other is an opposite-sex couple, is it a violation of the constitution to say it's better to give the kid to the opposite-sex couple? ... Could a legislature rationally conclude that on the whole it's preferable for [] children to have a mother and a father, rather than two mothers or two fathers?

Judge B: You give all sorts of benefits to the heterosexual adoptive parents and no benefits to the homosexual adoptive parents... Why don't you want their children to have the same advantages as children adopted by heterosexual couples? I don't get it... [W]hat is the difference from the standpoint of the child's welfare?

In 2006, Judge A vigorously questioned the advocates of gay marriage in New York State (including me) and authored the opinion declaring that same-sex marriage in New York was not constitutionally mandated because "for the welfare of children, it is more important to promote stability, and avoid instability, in opposite-sex than in same-sex relationships." Judge A also noted that "[t]he Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father [since] [i]ntuition 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."

In contrast, Judge B recently held that "children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married." In response to the "responsible procreation" argument that gay couples, but not straight couples, need to be encouraged to marry because only straight couples can accidentally get pregnant, Justice Posner wrote that under the current law in Indiana, "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."

The obvious question posed by these dramatically different observations concerning gay people and their children is: what has changed?

We know that it is not the political or judicial philosophies of the judges themselves. Each set of observations was posed by a self-identified conservative judge. Judge "A" is Robert S. Smith, an associate judge of the New York Court of Appeals, who was appointed by Republican Governor Pataki. Judge "B" is the renowned jurist Richard Posner, who was appointed to the Seventh Circuit by President Reagan. Both are straight, married white men, educated at superb universities with distinguished careers as lawyers and judges.

We also know that nothing has changed in terms of the scientific or empirical evidence about the fitness of gay people as parents. As the American Psychological Association concluded in the brief it submitted in the New York case: "scientific research... has been remarkably consistent in showing that lesbian and gay parents are every bit as fit and capable as heterosexual parents, and their children are as... well-adjusted as children reared by heterosexual parents."

If anything, the lone study challenging this uniform scientific consensus came out six years after the New York case. The author of that study has now been discredited not only by his own professional organization, the American Sociological Association, but also by a federal judge in Michigan who found his "testimony entirely unbelievable and not worthy of serious consideration."

And last but not least, the constitutional and statutory provisions at issue did not change either. When the New York case was argued in 2006, New York law limited marriage to opposite-sex couples, just as Indiana and Wisconsin law does today. The New York constitutional provisions at issue in that case contain language identical to that of the United States Constitution. The language of the relevant provisions in the United States Constitution, in turn, has never been amended.

Because the couples in Windsor were already married under state law, our primary argument to the justices of the Supreme Court was that there was no difference between gay married couples on the one hand and straight married couples on the other that could possibly justify the categorical discrimination under federal law wrought by the Defense of Marriage Act or DOMA. Judge Posner echoed this point in his Seventh Circuit opinion when he observed that "homosexual married couples are in essential respects .... like other married couples." And the Supreme Court also agreed when it held in Windsor that marriages between gay couples are "a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages."

What Judge Posner did this week is to take this argument a crucial and necessary step further. Judge Posner begins his opinion by explaining that while "formally these cases are about discrimination against the small homosexual minority in the United States, ... at a deeper level, . .. they are about the welfare of American children." So Judge Posner's argument is now that there is no difference between the children of gay couples and the children of straight couples. Of course, there isn't. Because Justice Posner has now refuted the only argument left to opponents of gay marriage, there can be little doubt that the Supreme Court will take the same step as Judge Posner and conclude that marriage equality must be recognized throughout the United States far sooner than anyone could or would have predicted when we lost the New York marriage case in 2006.