Yesterday, the Supreme Court heard oral arguments on Obergefell v. Hodges, (a consolidation of four cases arrsing from four different states:   Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky). The two issues the Supreme Court is faced to answer in this case are: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The Seventh Circuit was faced with the similar question in Baskin v. Bogan in 2014. Baskin addressed the refusal of the states of Indiana and Wisconsin to recognize the validity of same-sex marriages, whether they were contracted in these states or in states (or foreign countries) where they are lawful. Indiana and Wisconsin both argued that the prohibition on same sex marriage is to reduce accidental births. Writing the opinion of the court, the Great Posner quickly dismisses this argument and concludes:

The states’ concern with the problem of unwanted children is valid and important, but their solution is not “tailored” to the problem, because by denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples. The states’ solution is thus, in the familiar terminology of constitutional discrimination law, “overinclusive.” It is also underinclusive, in allowing infertile heterosexual couples to marry, but not same-sex couples.

In the consolidated Supreme Court case, all four cases refer to Baskin for the proposition that courts have held same sex marriage bans as a violation of the Fourteenth Amendment. The four cases, however, do not focus on the welfare of children. For example, Obergefell argues that the state of Ohio must respect the marriages of same sex couples legally performed in other states for the purpose of listing surviving spouses on death certificates. Similarly, during oral arguments of Obergefell, there was a mention of children and their welfare, but “the welfare of American children” was not the focus as it was in the case of Baskin. The majority of the oral arguments focused on the institution of marriage itself and the dignity of individuals. The lack of focus on the welfare of children is actually a relief.

A focus on children in the issue of same-sex marriage could be detrimental. This is where Posner’s opinion in Baskin could be misconstrued.  Posner noted in the Baskin opinion “that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.” Would his opinion be different if homosexual couples did not adopt children?

The Baskin opinion should not stand for the proposition that the welfare of children is the determinate factor in deciding the issue of same sex marriage. The only reason it was the determinate factor in Baskin was because both states had justified their bans on same sex marriage on this factor. But as Posner noted, the cases were about “discrimination against the small homosexual minority in the United States.” This is the emphasis that consolidated cases have taken.