Saturday, October 24, 2009
There was startling news last week of a Louisiana justice of the peace who said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. As one of my students phrased it, "Has Loving v. Virginia been overruled?"
The judge's "concern for the children" rationale is one that is often proffered by governments. In Reflections on Loving and Children's Rights, 20 U. Fla. J.L. & Pub. Pol'y 11 (2009), scholar Barbara Bennett Woodhouse (pictured right) and co-author Kelly Reese interpret the 1967 case of Loving v. Virginia as a landmark case in the area of children's constitutional rights. They write:
As it touches the lives of younger generations, Loving has played a central role in the development of children's rights to equality, privacy, agency, dignity and protection.
How can a case about marriage have such a broad legacy for children? Children define themselves and are defined by law in relation to those who bring them into the world, who claim them as their own and who guide their upbringing. Because of Loving and the cases that followed from it, the current generation of children, like no other before, enjoys the right to equal protection of the laws, regardless of the race or marital status of their parents. This generation also enjoys, as never before, the liberty to envision building families free from state-sanctioned discrimination. Nevertheless, pockets of discrimination remain, marginalizing many children who are growing up in nontraditional families and preventing many children from equal access to the benefits of a legally recognized family relationship. As long as these forms of discrimination continue, the legacy of Loving will remain unfulfilled.
They argue that marriage operates as a "gatekeeper" to children's rights, even though many of the disabilities of children born "out of wedlock" have been whittled away using constitutional doctrine. They extend their argument to the children of same-sex couples, including the wedge issue of adoption. Most interesting in this short piece are some of the observations by Barbara Bennett Woodhouse regarding advocacy, teaching, and personal experiences.
There have been many calls for
sanctions against the Louisiana Justice of the Peace and the couple has reportedly sued him. Perhaps the judge could be required to read Loving v. Virginia as well as the article by Woodhouse and Reese; perhaps he might be required to a responsive reflection.