Bush-and-Obama-Appointed Judge: It's 'Dubious Proposition That Same-Sex Couples are Less Capable Parents'

By Terence P. Jeffrey | July 28, 2014 | 6:01pm EDT

President Barack Obama and former President George W. Bush (AP Photo/Charles Dharapak)

(CNSNews.com) - U.S. Appeals Court Judge Henry F. Floyd--who was nominated to the federal bench by both President George W. Bush and President Barack Obama and who was confirmed to the appeals court by a bipartisan 96-0 vote in the U.S. Senate--said in an opinion issued today that it is a "dubious proposition that same-sex couples are less capable parents."

Floyd made the remark while declaring same-sex marriage a constitutional right and dismissing the argument made in favor of Virginia's marriage amendment that it safeguards the need of children to be raised by both a mother and a father.

"The proponents aver that 'children develop best when reared by their married biological parents in a stable family unit,'" wrote Floyd. "They dwell on the importance of 'gender-differentiated parenting' and argue that sanctioning same-sex marriage will deprive children of the benefit of being raised by a mother and a father, who have 'distinct parenting styles.' In essence, the proponents argue that the Virginia Marriage Laws safeguard children by preventing same-sex couples from marrying and starting inferior families."

Floyd noted that an amicus brief filed by a group of professional associations rebutted the theory that it is better for children to be raised by both a mother and a father.

"The opponents and their amici cast serious doubt on the accuracy of the proponents’ contentions," said Floyd. "For example, as the American Psychological Association, American Academy of Pediatrics, American Psychiatric Association, National Association of Social Workers, and Virginia Psychological Association (collectively, the APA) explain in their amicus brief, 'there is no scientific evidence that parenting effectiveness is related to parental sexual orientation,' and 'the same factors'—including family stability, economic resources, and the quality of parent-child relationships—'are linked to children’s positive development, whether they are raised by heterosexual, lesbian, or gay parents.”

"We find the arguments that the opponents and their amici make on this issue extremely persuasive," Floyd said, while conceding that deciding whether it was better for children to be raised by both a mother and a father was not necessary to his decision that when Virginia prohibited same-sex marriage it violated the 14th Amendment's due process and equal protection clauses.

"There is absolutely no reason to suspect that prohibiting same-sex couples from marrying and refusing to recognize their out-of-state marriages will cause same-sex couples to raise fewer children or impel married opposite-sex couples to raise more children," said Floyd. "The Virginia Marriage Laws therefore do not further Virginia’s interest in channeling children into optimal families, even if we were to accept the dubious proposition that same-sex couples are less capable parents."

Floyd was first appointed as a U.S. District judge by President George W. Bush in 2003, according to his biography on the website of the U.S. Court of Appeals for the Fourth Circuit. In 2011, President Barack Obama nominated him to the U.S. Court of Appeals for the Fourth Circuit. The Senate voted 96-0 to confirm Floyd to the appeals court.

Floyd was joined in his decision declaring Virginia's marriage law unconstitutional by Judge Roger Gregory. Gregory was initially given a recess appointment to the U.S. Court of Appeals for the Fourth Circuit by then-lame-duck President Bill Clinton on Dec. 27, 2000. President George W. Bush subsequently nominated Gregory to a lifetime position on the court in May 2001. The Senate voted 93-1 to confirm Gregory.

Judge Paul Niemeyer--who was originally appointed as a U.S. District Judge by President Ronald Reagan and then to the U.S. Court of Appeals for the Fourth Circuit by President George H.W. Bush--dissented in the Virginia marriage amendment case.

Niemeyer pointed out that the line of reasoning advanced by the plaintiffs in the case could also justify polygamous and incestuous marriages.

"The plaintiffs also largely ignore the problem with their position that if the fundamental right to marriage is based on 'the constitutional liberty to select the partner of one’s choice,' as they contend, then that liberty would also extend to individuals seeking state recognition of other types of relationships that States currently restrict, such as polygamous or incestuous relationships," wrote Niemeyer.

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