Bench Memos

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Walker’s Gender Follies


Among Judge Walker’s astounding assertions are his claims that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” (slip op. at 127 (emphasis added); see also purported finding of fact # 70) and that the “genetic relationship between a parent and a child is not related to a child’s adjustment outcomes” (slip op. at 96 (emphasis added)).  In their stay motion to the Ninth Circuit, Prop 8 proponents summarize in a long footnote just a small part of the record evidence and other authority that they presented to Walker in refutation of such claims.  The rest of this post is excerpted from that footnote.  “DIX” references are to defendants’ trial exhibits.  (I’ve deleted some citations.)

[T]he district court’s startling conclusion that a child does not benefit from being raised by its own married mother and father, and that indeed it is irrational to believe otherwise, is plainly unwarranted.  The law “historically … has recognized that natural bonds of affection lead parents to act in the best interests of their children.”  Parham v. J.R., 442 U.S. [584,] 602 [(1979)]; see also Gonzalez v. Carhart, 550 U.S. 124, 159 (2007) (“Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”); cf. United Nations Convention on the Rights of the Child, Art. 7 (“as far as possible, [a child has the right] to know and be cared for by his or her parents”).

Indeed, “[a]lthough social theorists . . . have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.”  Courts have thus repeatedly upheld as rational the “commonsense” notion that “children will do best with a mother and father in the home.” [citations omitted] Cf. Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (“the optimal situation for the child is to have both an involved mother and an involved father”).

This widely shared and deeply engrained view is backed up by social science.  See, e.g., Kristin Anderson Moore, et al., Marriage From a Child’s Perspective, Child Trends Research Brief at 6 (June 2002) (*DIX26) (“Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage.”); id. at 1-2 (“[I]t is not simply the presence of two parents, … but the presence of two biological parents that seems to support children’s development.”); Wendy D. Manning & Kathleen A. Lamb, Adolescent Well Being in Cohabiting, Married, & Single-Parent Families, 65 J. Marriage & Fam. 876, 890 (2003) (DIX21) (“The advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.”); see also Affidavit of Professor Steven Lowell Nock, Halpern v. Attorney General of Canada, Case No. 684/00 (Ont. Sup. Ct. Justice 2001) (DIX131, attached as Exhibit C) (detailing flaws in same-sex parenting scholarship and studies). 

In light of all of this evidence, the district court’s conclusions that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes,” and that the biological bond between a child and its mother and father “is not related to a child’s adjustment outcomes,” are simply unsupportable.


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