Tuesday, August 17, 2010
Rhonda Wasserman (University of Pittsburgh School of Law) has posted "DOMA and the Happy Family: A Lesson in Irony" (forthcoming California Western International Law Journal) on SSRN. Here is the abstract.
In enacting the Defense of Marriage Act, Congress chose to protect heterosexual marriage because of its “deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.” Ironically, DOMA may harm, rather than protect, the interests of some children – i.e., the children of gay and lesbian couples.
Both state and federal law reflect the belief that children are better off being raised by two parents in an intact family. This belief is reflected in the marital presumption of paternity, which presumes that a married woman’s husband is the father of her child. Similarly, under federal constitutional law, marriage to a child’s mother is the most effective way for a man to preserve and develop a relationship with his child. Given the saliency of marriage in defining parental rights and given the law’s implicit recognition that children are better off living with two parents who not only love their children but love one other, it is deeply ironic that DOMA may reduce the likelihood that children’s relationships with their gay and lesbian parents will be recognized if the parents marry and rely on the marital presumption of parentage. For a law intended to protect marriage as a means of protecting children, this potential result is ironic indeed.