I have written previously about the a curious new argument adopted by opponents of same-sex marriage. The argument goes something like this: The Supreme Court has held that diversity is a compelling state interest in upholding certain kinds of affirmative action programs in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow same-sex marriage while banning opposite-sex marriage, because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.
The argument has found its way into some of the amicus briefs in United States v. Windsor as well as party and amicus briefs in several disputes pending around the country. In Windsor, for example, one amicus arguing the validity of DOMA stated:
Without bothering to cite the copious literature showing the benefits of having a mother and father: common sense tells us that more diversity exists when a child can learn from a female parent and a male parent, than with two male or two female parents. With two fathers, how can a child be breast-fed by a parent? And with two mothers, a child may have no close male role model from whom to learn.
Landmark affirmative-action case Grutter v. Bollinger tells us of the compelling state interest of diversity served by affirmative action at universities. But that is only maybe for four years, at a college. By contrast, for the eighteen years of pre-adult growing up (including the vital first few years of life), for a child to have diverse, different-sex parenting, could be considered a far more compelling interest.
The argument reemerged in the litigation of Utah’s same-sex marriage ban. In an emergency petition asking the Supreme Court to stay the district court’s decision invalidating Utah’s same-sex marriage ban, for example, Utah argued that “society has long recognized that diversity in education brings a host of benefits to students,” and “[i]f that is true in education, why not in parenting?” As Utah puts it: “the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children” (emphasis theirs). Continue reading