Scalia on Gay Marriage: ‘No Scientific Answer’ About Effects on Children

By Penny Starr | March 26, 2013 | 3:34 PM EDT

Supreme Court Justice Antonin Scalia (AP Photo/Jessica Hill, File)

( – During oral arguments at the Supreme Court on Tuesday over the constitutionality of a California law that reserves marriage as a union between one man and one woman, Justice Antonin Scalia said that the effects on children who are raised by same-sex couples is not confirmed by experts or science.

“There's considerable disagreement among – among sociologists as to what the consequences of raising a child in a – in a single-sex family, whether that is harmful to the child or not,” Scalia said during the exchange between the justices and Charles Cooper, the attorney representing the petitioner in Hollingsworth v. Perry.

“I don't think we know the answer to that,” Scalia said. “Do you know the answer to that, whether it – whether it harms or helps the child?”

“No, your honor,” Cooper said.



Justice Ruth Bader Ginsburg pointed out that California law already allows homosexual couples to adopt children.

“It's true, but irrelevant,” Scalia said. “They're arguing for a nationwide rule which applies to states other than California, that every state must allow marriage by same-sex couples.

“And so even though states that believe it is harmful -- and I take no position on whether it's harmful or not -- but it is certainly true that -- that there's no scientific answer to that question at this point in time,” Scalia said.

Hollingsworth v. Perry concerns Proposition 8, a 2008 ballot initiative to amend the California constitution to define marriage as a union between one man and one woman.  Gay rights activists challenged the law, and an appellate court ruled it unconstitutional. When the state refused to defend the law, pro-family organizations and Prop 8 advocates asked the Supreme Court to hear the case.

Justice Anthony Kennedy agreed about the lack of science concerning same-sex parenting but had a different take on the children being raised by those couples.

“I think there's substantial -- that there's substance to the point that sociological information is new,” Kennedy said. “We have five years of information to weigh against 2,000 years of history or more.

“On the other hand, there is an immediate legal injury or legal -- what could be a legal injury -- and that's the voice of these children.

“There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, 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?” Kennedy said.

Chief Justice John Roberts also noted the history of traditional marriage and pointed out that same-sex marriage was newer than cell phones or the Internet.

“The one thing that the parties in this case seem to agree on is that marriage is very important,” Roberts said. “It's thought to be a fundamental building block of society and its preservation essential for the preservation of society.

“Traditional marriage has been around for thousands of years,” Roberts said. “Same-sex marriage is very new.

“I think it was first adopted in The Netherlands in 2000,” Roberts said. “So there isn't a lot of data about its effect.

“And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.

“But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? Roberts said. “I mean we -- we are not -- we do not have the ability to see the future.”

On Wednesday, the high court will hear a challenge to the federal Defense of Marriage Act (DOMA), which was enacted in 1996 and defines marriage for federal purposes as the legal union of one man and one woman, and asserts that no U.S. state or political subdivision must recognize a same-sex marriage from another state.