Sheri Gay Marriage

Most of the arguments deployed with the intention of circumscribing the parenting rights of homosexual couples are founded in precarious condemnations of homosexuality in general. Consequently, few of these arguments hold water. However, the concern that the children of homosexual couples would be subject to taunting by their peers is certainly relevant to the well being of the children in question. Nevertheless, while stigma may be a reality for the children of same-sex parents, these stigma must not be cemented into law. Sheri’s argument is flawed on the grounds that bias should not be affirmed by the law, she fails to prove any actual harm to her daughter as a result of the father’s homosexuality, and the psychological harm from the separation
of the child from her father would be worse than that of societal stigma. The mere existence of societal stigma toward a particular minority does not warrant that prejudice to be integrated into law. Bigotry and intolerance are unfortunate realities of human nature that preserve themselves in decreasing quantities in generation after generation. Biases within society cannot be easily controlled, and must be slowly eroded over the process of changing hearts and minds. Contrastingly, the law ought to be a steadfast protector of the rights of minorities. One of the most important purposes that the law serves is its insurance that tyrannical majorities do not infringe upon the rights of a legislatively defenseless minority. Although animosities toward societal groups cannot be controlled, the law must not be allowed to affirm them. By confirming prejudice against homosexuals into law, biases would simply be reinforced as opposed to becoming subject to erosion over time. Punitive policies toward minorities not only ensure that biases persist, but bolster them with legitimacy. Opposition to laws reinforcing societal prejudice was cemented into precedent in the 1984 Supreme Court decision of Palmore v. Sidoti. The court found that private biases toward racial groups were not sufficient to deny a parent custody in cases of divorce. Chief Justice Burger reasoned that “the Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect, (Palmore v. Sidoti)” rejecting stigma as criteria for determining parental fitness as a violation of the Equal Protection Clause. The reasoning used by the Court to reject racial bias as a reason for denying custody has many parallels to the circumstances facing homosexual parents. Interracial couples and their children face biases similar to those faced by families with same sex parents. It is not a monumental leap recognize the similar plights between these two historically stigmatized groups and extend the Palmore precedent to cases involving custody of a homosexual parent. Opponents of equal parenting rights for homosexuals may counter the comparison to interracial parents by noting that sexual orientation is not a suspect class, therefore it does not receive the same heightened scrutiny. While these opponents would be correct in asserting that the Supreme Court has not formally recognized sexual orientation as a suspect class, homosexuals share many characteristics with groups that have received strict scrutiny. Firstly, homosexuals have been historically stigmatized like other suspect classes, being regarded as a class of mentally diseased persons until the mid 20th century. Additionally, the lesbian and gay community do not harbor the electoral clout that would allow them to defend themselves against discriminatory policies. Until recent surges in popular support for gay rights, politicians had no incentive to speak out for the preservation of rights for homosexuals. Finally, homosexuals possess an immutable trait, much like the suspect classes of race or sex. The modern understanding of homosexuality holds that one’s sexual orientation cannot be changed, thus it would be unjust to attempt to legislatively punish homosexuals for their behavior (APA). Moreover, the Ninth Circuit Court of Appeals has expressed agreement in the decision of Smithkline Beecham v. Abbott that sexual orientation must be treated with heightened scrutiny. While it is not yet the law of the land that sexual orientation be regarded as a suspect class, homosexuality clearly meets the criteria that has led the Court to bestow this status upon other historically stigmatized groups. In her argument Sheri asserts that her daughter will inevitably be subject to ridicule by her peers if the court allows the father to share custody. However, she missteps by failing to establish a nexus between the father’s homosexuality and actual harm to her daughter as opposed to merely asserting potential harm. Instead of aiming her argument at pursuing the custodial arrangement that will best suit the well being of her daughter, Sheri asserts as established fact that David must lose custody of their daughter. Moreover, Sheri presses the notion that it is morally just that she prevail simply on the basis that David has come out as homosexual. The basis of her argument reflects that her motives are rooted in bitterness and homophobia as opposed to protecting her daughter; the concern that her daughter will face stigma is simply the most convenient plea for her to make. In her resentful statement, Sheri fails to even attempt to point to any substantive harm that has come to her daughter as a result of David’s new homosexual relationship. As a result, the argument fails the nexus test on the grounds that no harm has been connected to the change in circumstance. Thus the court cannot deny David custody solely based upon his new homosexual relationship. Furthermore, Sheri’s case rests on the notion that her daughter will necessarily be a victim of limitless ridicule if she is allowed to live with David in his conservative hometown.
However, it is not guaranteed that their daughter will be a target of societal stigma, especially due to the persistent ascent of tolerance for same sex marriage and homosexuality in general. Over the past decade the percentage of Americans that support marriage equality has reversed: in 2006 only 35% supported marriage rights for gays and lesbians with 55% opposed, while in 2016 55% expressed support for gay marriage while only 37% remained opposed. Even more telling is the number of conservatives that now express tolerance for homosexuality in general. Approximately half of Republicans now feel that homosexuality ought to be accepted, up from a low of 33% ten years ago (Fingerhut). The Supreme Court’s ruling legalizing same sex marriage in Obergefell v. Hodges has had a reinforcing effect on the already climbing national opinion showing support for same sex marriage. This is a testament to the notion that law gives social phenomena legitimacy. By affirming that marriage is a fundamental right that cannot be denied to any American based on their sexual orientation, the Court has given public opinion a nudge toward the direction of tolerance. While bias toward homosexuality still persists in society, a majority of the American people now accept it; Sheri and David’s daughter may or may not face
stigma as a result of David sharing custody, but recent trends in public opinion suggest that she will face a more tolerant society, even amongst conservatives. If Sheri’s argument is accepted and David is denied the right to have a relationship with his daughter, the psychological damage caused by the separation from and stigmatization of David may be worse than any teasing that the daughter may or may not encounter. When the law bolsters stigma that exists within society, those affected often develop a sense of inferiority. Biased statutes send a signal that the immutable position that the targeted group finds itself in is something to be ashamed of, giving rise to tangible harm later in life. This phenomena was illuminated in a series of psychological experiments conducted in the 1940’s that came to be known as the “Dolls Test.” In an attempt to discover the psychological effects of segregation on young black children, researchers asked children to voice their preference between two dolls, one with black skin and one with white. The results found that a majority of the children preferred the white doll to the black one, and attributed positive characteristics to the former (NAACP LDF). Researchers accredited the disparity in doll preferences to the low sense of self esteem that many black children has developed as a result of segregation reinforced by law. The “Doll Tests” were instrumental in the arguments used in the landmark Supreme Court case of Brown v. Board of Education, as the plaintiff argued that this low sense of self esteem would accrue to tangible harm like lower grades and earnings later in life.
The same argument used to combat racial segregation can be extended to laws that enforce bias toward homosexuals. If gay parents are denied custody of their children simply because they are gay, this will communicate to the children that their situation is abnormal and deserving of shame. As a result the child’s development process will be hampered by the failure to develop a sense of self esteem. Sheri’s argument for denying David custody of their daughter is centered upon avoiding any stigma that may arise as a result of the daughter being associated with her homosexual father. However, she neglects to recognize that denying David custody would impose legal stigma upon her daughter that would accumulate into tangible harm later in life.
While Sheri raises genuine concerns for the well being of her daughter in her plea to the court, her argument missteps on several fronts.
The most crucial mistake present in her argument is the assertion that law should reaffirm biases toward specific social groups. This argument was rejected in the Supreme Court decision of Palmore v. Sidoti because law cannot be allowed to affirm prejudice toward interracial couples; nor can it be allowed to affirm homophobia in this case. Additionally, Sheri fails to provide a nexus between the father’s homosexuality and any harm to their daughter. She does not attempt to point to any harm that has arisen since the father began his relationship with a man, only justifying her argument by citing potential harm that may affect the daughter. Moreover, the psychological effects of separating David from the daughter would be more substantial than any stigma she may or may not face. Laws that stigmatize an immutable trait lead to hampered levels of self esteem, as reflected in the 1940’s “Dolls Tests.” Although bias toward homosexuals may persist within society, the law cannot be allowed to give these biases legitimacy. The law must continue serve as a steadfast protector of the rights of minorities, especially in the face of a hostile
majority.