Could the Kids Sway Kennedy in Marriage Cases?

posted on Fri, Apr 19 2013 5:39 pm by Scott Graham, The Recorder

SAN FRANCISCO — When Supreme Court Justice Anthony Kennedy invoked the interests of children during oral arguments on Proposition 8, email boxes at the Family Equality Council began lighting up. "Oh my god, Justice Kennedy has just asked the most beautiful question," said one message.

The D.C.-based organization and its outside counsel at Bryan Cave have been trying to ensure that, as the high court weighs the right of same-sex couples to marry, the justices don't overlook another group of interested parties: the children of couples who can't wed.

"That was Family Equality's No. 1 goal — to make sure these kids are part of the equation," said Katherine Keating, the San Francisco-based Bryan Cave attorney who helped write an amicus curiae brief on Family Equality's behalf.

The goal was fulfilled when Kennedy, while expressing caution about a broad constitutional ruling for same-sex marriage, said that "on the other hand" there is "an immediate legal injury" to children. "There are some 40,000 children in California, according to the red brief, that live with same-sex parents," Kennedy told Charles Cooper, the attorney representing Prop 8 proponents, "and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"

The "red brief" likely refers to briefs filed by the Perry plaintiffs and the city of San Francisco, each of which note in passing the stakes for children of same-sex couples in the issue. The city explicitly cites to the Family Equality amicus brief, which explores the issue in depth using language that tracks Kennedy's formulation.

"The voices of children raised by same-sex parents — those who live every day within the family structure at the heart of these lawsuits — are too often unheard in the debates about same-sex couples and marriage," wrote Keating, a trademark and copyright lawyer who jumped at the chance to do persuasive writing on a huge social issue.

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