University of Illinois Law Review

The legalization of gay marriage has been a contentious issue since the Hawaii Supreme Court struck down a Hawaii law prohibiting such marriages. Many commentators have addressed the related, and similarly divisive, issue of same-sex parenting. In this article, Professor Lynn D. Wardle argues that the legal academic and social science communities have come to the defense of gay marriage and parenting too hastily, without considering the effects of both on children. In particular, Professor Wardle asserts that law review articles supporting homosexual parenting have relied on methodologically flawed and inadequate social science studies comparing the effects of same-sex and opposite-sex childrearing. The author suggests that these studies have ignored significant potential effects of gay childrearing on children, including increased development of homosexual orientation in children, emotional and cognitive disadvantages caused by the absence of opposite-sex parents, and economic security.

The author also examines judicial responses to homosexual parenting in adoption, custody, and visitation cases. He contends that judicial reaction has run the gamut from outright disapproval to open acceptance of gay parenting. But he notes that more recent case law reflects an approach which treats same-sex and opposite-sex childrearing as equivalent. To underscore the connection between gay marriage and parenting, Professor Wardle discusses and critiques the landmark Hawaii decision overturning a law restricting marriage to heterosexual couples. In particular, he argues that the Hawaii attorney general failed to argue forcefully that the state has a compelling interest in protecting children from the effects of gay marriage, and that the trial judge trivialized the state's expert testimony on that issue. The author concludes that same-sex marriage and parenting issues do not belong in the courts; he approvingly points to Scandinavian laws which are permissive in extending marriage benefits to gay couples, but which are restrictive in denying such couples adoption and custody privileges.

Professor Wardle's answer to the judicial morass is a rebuttable presumption in custody cases relating to proof of extramarital sexual activity. He proposes that such a presumption apply to both heterosexual and homosexual extramarital behavior, take account of the degree of actual harm caused by the extramarital affair, and run in favor of the party who was faithful to the marriage. According to the author, such a presumption, if reasonably applied, would ensure that the interests of children are accorded proper consideration in societal decisions about same-sex marriage and parenting.

* Professor of Law, J. Reuben Clark Law School, Brigham Young University. B.A. 1971, Brigham Young University; J.D. 1974, Duke University. An earlier version of this article was presented as a paper at the International Society of Family Law's North America Regional Conference on Parent and Child in North American Family Law, in Quebec City, Quebec, June 13-15, 1996. I am indebted to Eric Andersen, A. Dean Byrd, David Coolidge, Sanford Katz, Terry Kogan, Jane Marquardt, Camille Williams, Richard Williams, and others who have reacted to my paper, presentation, parts of this article, or ideas that went into writing it, and to William Duncan, Troy Smith, Mike Connell, and Joy Pearson who provided valuable research assistance.