How Chief Justice Roberts Helped the Pro-Gay Marriage Cause in the Hollingsworth v. Perry Case

It was a simple enough question, but honestly one that I hadn't thought about (and given the fumbling response from Solicitor General Donald Verilli, one he hadn't thought about either). In fact, I don't think I've heard anyone from the pro-gay side bring this up in quite this way:

CHIEF JUSTICE ROBERTS: Can I ask you a problem about -

GENERAL VERRILLI: Sure.

CHIEF JUSTICE ROBERTS: -- I -- it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?

It's a really brilliant question. A crucial one.  Especially in light of the *only* near-legitimate social science study to date to to show harm for children raised by gay parents: Mark Regnerus' The New Family Structures Study. Now, I don't want to get into the myriad reasons that this Regnerus study was flawed (the good folks at Box Turtle Bulletin have done a more than adequate job of picking the study apart in several posts). But I want to venture something that very few people have been willing to say about the study: I think it's a very important study whose results need to be heeded. The reason I think it is goes back to Chief Justice Roberts' line of questioning. The study, I believe, is the smoking gun that all but proves why gay marriage ought to be the law of the land. Given that so few of the (study participant) children raised by gay parents were in stable homes of gay married people, it is obviously a bit of a "no shit, Sherlock!" conclusion that these kids faired worse than children in stable homes where the parents were heterosexual and always married.  In other words, the study compared kids in homes with stable heterosexual marriages, to kids primarily in broken homes where the parents were in some way same-sex identified at some point. That includes homes where the gay biological parent divorced their opposite sex partner and came out later in life; homes where the gay biological parent lived with a same-sex romantic partner never, for a short while, or perhaps a long while (but I don't know if any were actually gay-married); and homes where the same-sex parent stayed in their opposite sex marriage, which obviously can cause some marital stress of its own which may have a profound effect upon children.

In short, when there is no gay marriage, there is no stabilizing institution which grants gay couples the proper home and protection to raise children such that they have a chance at fairing as well as children raised by heterosexual married parents.

So I thank Chief Justice Roberts for helping to make the case that the social science to date really cries out for us to have gay marriage - even the one study largely touted by the Right as the proof that kids need a mom and a dad.  I hope that SCOTUS will make wise decisions on this case (and the DOMA case), recognizing that gay marriage ought to be Constitutional...if not for the freedom and happiness of gay couples, at least to give the kids with gay parents a fighting chance at a healthy life. I trust that they recognize the blatently obvious: gay marriage is  (as Jonathan Rauch suggests) "good for gays, good for straights, and good for America".