Proponents of Prop 8, citing studies showing that children fare better in households with a mother and father, argue that the government should limit marriage rights to opposite-sex couples in the service of the public interest. They also contend that the measure encourages responsible procreation and upholds tradition. Furthermore, from a political perspective, proponents argue that the court should defer to the political process in the state of California and not engage on what they argue is a state issue.
However, there are a number of issues with this position. To begin with, many studies showing that children fare better in households with both a mother and father indicate that the benefits of two-parent households, and in particular of the increased financial and emotional stability related to them, may also accrue in two-parent households where both parents are of the same gender.
If it is indeed financial and emotional stability that allows children to grow up to be happier and more successful, it seems unlikely that one can deny the possibility that same-sex two-parent households with stable economic and emotional environments could be just as successful at child-rearing as equally economically and emotionally supportive opposite-sex two-parent households.
Moreover, as the preliminary hearings indicate, there is a strong likelihood that the court itself may view the harm to children of same-sex unions as a higher priority than the challenge to traditional institutions that the overturn of Prop 8 would represent. Justice Anthony Kennedy acknowledged the "immediate" legal harm to same-sex couples who cannot currently be married and called the voices of thousands of children of same-sex couples an important aspect of the Prop 8 ruling. Responding to comments by Charles Cooper, who is representing Prop 8 supporters, Kennedy said that these children "want their parents to have full recognition and legal status the voice of those children is considerable in this case, don't you think?"
This shows that there is some sentiment in the court that upholding Prop 8 may harm same-sex households more than its overturn would harm opposite-sex households, and that the potential threat that Prop 8 represents to fundamental rights may lead the court to apply intermediate or strict scrutiny and overturn Prop 8.
The traditionalism and procreation arguments, with their deep roots in religious moralism, are particularly problematic pillars of support for Prop 8. While it is true that the Court recognizes religious organizations' rights to certain exceptions to federal policy, the primacy of equality under the Civil Rights Act of 1964 may override historic deference to religious organizations' moral views. This is indicated to a limited degree by Kennedy's expressed doubts that Prop 8 and same-sex marriage bans in general present "no harm of denigration" against gays and lesbians. If this is the case, and same-sex marriage bans cause homosexuals to be treated in a manner that is not acceptable under civil rights legislation, then Prop 8 will be summarily overturned.
However, the Prop 8 decision may ultimately come down to the issue of the separation of church and state. The numbers prove that the Prop 8 result in California was influenced by religion, with 84 percent of self-identified regular churchgoers voting for the proposition, as opposed to only 17 percent of non-churchgoers and 15 percent of non-Christians. This founding ideal of the American political consciousness and its implication that religious beliefs have little place in the government's treatment of its citizens indicates that Prop 8, which carries the distinct risk of causing LGBT individuals to be treated in a discriminatory manner due to socio-religious dogma, should be overturned if the court is to stand in line with the tradition of American political thought.
