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42 Florida State University Law Review 547 (2015)


If, as is widely expected, the Supreme Court soon holds that bans on same-sex marriage are unconstitutional, it is almost certain that the decision will rely heavily on the Court’s reasoning in United States v. Windsor. I strongly support marriage equality. However, a decision that amplifies Windsor’s conception of the harm caused by exclusionary marriage rules could set back efforts to secure legal recognition of, and respect for, non-marital families. That is, Windsor rectified a deep inequality in the law—that same-sex marriages were categorically denied federal recognition—but in so doing it embraced a traditional understanding of marriage as superior to all other family forms. Its rationale and its rhetorical flavor stand in tension with foundational cases from the 1960s and 1970s that dismantled the legal systems under which non-marital children were systematically denied benefits and that protected the decision-making autonomy of couples who engaged in sexual intimacy outside of marriage.

The expansion of marriage rights for same-sex couples, including any future victory at the Supreme Court, comes at a time when marriage rates more generally are at an all-time low and non-marital childbearing is at an all-time high. The lesbian, gay, and bisexual (LGB) community is part of these larger trends. Demographers believe that the majority of children currently being raised by same-sex couples were conceived in prior heterosexual relationships that included a member of the couple. Same-sex couples with relatively low levels of educational attainment are more likely to be raising children than couples with advanced degrees; same-sex couples that include racial minorities are also more likely to be raising children than white couples. If marriage and divorce by same-sex couples follow more general trends, the members of the LGB community who are statistically most likely to be raising children are also statistically least likely to marry and remain married. Accordingly, even if same-sex couples enjoy universal marriage rights, it is essential to continue to advocate support of non-marital families and other blended family forms that depart from the “traditional” nuclear family.