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«NOS. 14-556, 14-562, 14-571, 14-574 IN THE Supreme Court of the United States JAMES OBERGEFELL, ET AL., Petitioners, v. RICHARD HODGES, DIRECTOR, ...»

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That, in turn, would likely result in fewer manwoman couples marrying, specifically in lower-income communities where the immediate (though not the long-term) effect of marriage would be financially disadvantageous. See Julien O. Teitler, et al., Effects of Welfare Participation on Marriage, 71 J. MARRIAGE & FAM. 878, 878 (2009) (concluding that “the negative association between welfare participation and subsequent marriage reflects temporary economic disincentives”). Thus, it is reasonable to expect that more man-woman couples having or raising children will choose cohabitation over marriage.18 Merely delaying the decision whether to marry until after they begin having children does not bode well for the prospects of cohabiting couples eventually choosing marriage. For once those couples have children outside of wedlock, they are less likely to marry and more likely to cohabit. See Nock, Consequences, at 250.

But cohabitation is associated with many negative outcomes for women and their children. “Cohabitors,” for example, “report higher levels of depression than their married counterparts, net of sociodemographic factors.” Susan L. Brown, The Effect of Union Type on Psychological Well-being: Depression Among Cohabitors Versus Marrieds, 41 JOURNAL OF HEALTH AND SOCIAL BEHAVIOR 241, 241 (2000). “The greater depression characterizing cohabitors is primarily due to their higher relationship instability relative to marrieds.” Id. Thus, as more man-woman couples choose cohabitation over marriage, the women in those relationships will be more likely to experience depression and angst.

Women in cohabiting relationships, moreover, are more likely to experience violence at the hands of their partners when compared to women in marital relationships. See Amanda Berger, et al., Relationship Violence Among Young Adult Couples, Child Trends Research Brief 1 (June 2012) (“[C]ohabiting couples reported the highest levels of relationship violence”);

Catherine Kenney & Sara McLanahan, Why Are Cohabiting Relationships More Violent Than Marriages, 43 DEMOGRAPHY 127, 127 (Feb. 2006) (discussing “the higher rate of intimate-partner violence and intimatepartner homicide among cohabiting couples than among marriage couples”). Thus, a projected decline in marriage portends significant risks to women’s safety, especially in underprivileged socio-economic groups.

Additionally, “[c]ohabiting families” are “considerably worse off ” economically “than married-parent families,” Thomas & Sawhill, supra, at 57, because “cohabiting unions are marked by fewer long-term investments and plans, produce less specialization and pooling of resources, [and] are associated with a smaller wage premium for men,” Wax, Diverging, at

30. Consequently, the women and children in these relationships will endure additional hardships brought upon by a deficiency of economic resources.19 Without the stability that marriage provides, more cohabiting man-woman couples will end their relationships because “unmarried cohabitations overall are less stable than marriages.” Kohm, supra, at 86.20 When a cohabiting relationship ends, women are usually left in a worse position financially than they would have been had they been married, because they do not have the financial protections and benefits available through divorce. In fact, after dissolving a cohabiting relationship, the woman’s financial status often declines “precipitously, leaving a substantial proportion of women in poverty.” Sarah Avellar & Pamela Smock, The Economic Consequences of the The absence of marriage has such a direct effect on household resources that some scholars have projected that “poverty rates would drop substantially if [mothers living with unattached men] were to marry.” Thomas & Sawhill, supra, at 57.

See also Wax, Diverging, at 30 (“In general, cohabitation does not signify the same degree of commitment as does marriage, and is in fact usually less durable” (internal quotation marks omitted)); Larry Bumpass and Hsien-Hen Lu, Trends in Cohabitation and Implications for Children’s Family Contexts in the United States, 54 POPULATION STUDIES 29 (2000) (demonstrating that cohabiting families are less stable than married families).

Dissolution of Cohabiting Unions, 67 J. MARRIAGE & FAM. 315, 315 (2005).21

3. More Man-Woman Couples Will End Their Relationships, Leaving Low-Income Women and Their Children in the Lurch.

Redefining marriage will also entrench an understanding of marriage that elevates adult fulfillment over children’s needs, and that denies the benefits to children from being raised by their biological parents or from having both a mother and a father. See supra at 15. This newfound meaning of marriage will result in fewer man-woman couples, specifically those in disadvantaged communities, who together persevere through marital difficulties for the well-being of their families. After all, if society understands marriage to exist predominantly for adult happiness, then the idea of sticking through hard times for the good of others, be it children or a spouse, will decline further.

This projection of increased marital instability is supported not only by logic, but also by social science.

Empirical evidence shows that spouses who embrace the adult-centered view and its corresponding ethic are, on average, less satisfied with their marriages





Social science indicates that this pattern of cohabitation is selfstrong>

replicating because children raised by cohabiting parents decide to engage in cohabiting relationships of their own more often than children raised in intact marital families. Paige D. Martin, et al., Adolescent Premarital Sexual Activity, Cohabitation, and Attitudes Toward Marriage, 36 ADOLESCENCE 601, 601 (2001), quoted in Lynn Marie Kohm and Karen M. Groen, Cohabitation and the Future of Marriage, 17 REGENT U. LAW REV. 261, 263 (2005).

and thus more likely to experience conflict and divorce. See W. Bradford Wilcox and Jeffrey Dew, Is Love a Flimsy Foundation? Soulmate versus institutional models of marriage, 39 SOC. SCI. RESEARCH 687, 687 (2010); Wilcox, WHY MARRIAGE at 16 (“[I]ndividuals who embrace a conditional ethic to marriage—an ethic based on the idea that marriages ought to continue only as long as both spouses are happy—are less happy in their marriages”). Moreover, studies have shown a contagion effect associated with divorce, meaning that once people within a discrete community begin to end their marriages, friends and neighbors are more likely to follow suit. See Rose McDermott, et al., Breaking Up Is Hard to Do, Unless Everyone Else Is Doing It Too: Social Network Effects on Divorce in a Longitudinal Sample, 92 SOCIAL FORCES 491, 515 (2009).22 Greater incidence of divorce poses significant risks for women, especially in poorer communities. Several studies have found that women’s health often “deteriorate[s] … following marital disruption.” Bridget Lavelle & Pamela J. Smock, Divorce and Women’s Risk of Health Insurance Loss, 53 JOURNAL OF HEALTH AND SOCIAL BEHAVIOR 413, 413 (2012) (collecting studies). In the years immediately after their divorce, divorced women experience significantly higher levels of psychological distress than married women. Frederick Lorenz, et al., The Short-Term and

Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_

id=1490708. The greater incidence of cohabitation among manwoman couples discussed above will further contribute to greater relationship instability because cohabiting relationships dissolve at a higher rate than marital relationships. See supra at 28 and n. 20.

Decade-Long Effects of Divorce on Women’s Midlife Health, 47 JOURNAL OF HEALTH AND SOCIAL BEHAVIOR 111, 111 (June 2006); see also Megan Sweeney & Allan Horwitz, Infidelity, Initiation, and the Emotional Climate of Divorce: Are There Implications for Mental Health?, 42 JOURNAL OF HEALTH AND SOCIAL BEHAVIOR 295, 295 (2001) (noting that the “initiation [of divorce] is associated with increased depression in the absence of spousal infidelity”). And as the years pass, divorced women tend to experience “significantly higher levels of illness, even after controlling for age, remarriage, education, income, and prior health.” Lorenz, supra, at 111. Thus, as divorce becomes more commonplace, it is reasonable to expect that more women will endure illness and psychological distress.

Divorce is also difficult for children. Indeed, studies have shown that “children with divorced parents … have lower average levels of cognitive, social, and emotional well-being.” Amato, supra, at 77. And these deficiencies “persist well into adulthood,” id., such that “parental divorce during childhood is linked with a wide range of problems in adulthood,” id. at 78.

These enduring development deficiencies experienced by the children of divorce will, in turn, compound the stressors in the lives of their mothers.

Divorced women are often left in economically compromised positions. See Pamela Smock, et al., The Effect of Marriage and Divorce on Women’s Economic Well-Being, 64 AM. SOC. REV. 794, 794-95 (1999) (“[W]omen’s economic vulnerability outside of marriage is ubiquitous.”). They typically become single mothers, see Carroll & Dollahite, supra, at 56; and as discussed above, single mothers experience a disproportionate share of poverty. See supra at 22.

Divorced mothers, in particular, often make less money than other females in the workforce. They “typically invest[ed] in the[ir] family by restricting their own work force participation, if only long enough to take care of small children.” Kohm, supra, at 83 (quoting Thomas Sowell, Gays Are Not “Entitled” to Marriage, The Virginian-Pilot, at B9 (Aug. 21, 2006)).

As a result, those women generally “experience decreased financial worth and marketability” because they “prioritiz[ed] child care and other domestic responsibilities.” Kohm, supra, at 83; see also Williams, Women, supra, at 493 n.28 (“[B]ecause the prime time for career advancement corresponds to the best time for childbearing, mothers tend to lose promotions and raises they would have earned had they stayed fulltime in the marketplace”).

This explains, at least in part, why poverty rates for women who marry and later divorce exceed those of never-married women. Lichter, supra, at 60. And it also explains why, from a financial perspective, “divorce tends to have a disparate impact on the sexes, with women who have left the workforce in order to bear and raise children experiencing post-divorce free-fall economic losses.” Williams, Women, supra, at 492-93.

The plight of divorced mothers is compounded by the tendency of their children’s fathers to withdraw from the children’s lives. “[R]esearch strongly indicates that substantial barriers exist for men’s fathering outside of a caring, committed, collaborative marriage.” Doherty, Responsible Fathering, at 290. And “[a] growing body of research has shown that if fathers do not live with the mother and child, their presence in the child’s life is frequently marginal and, even when active for a while, tends to be fragile over time.” Carroll & Dollahite, supra, at 56; see also McLanahan & Sandefur, supra, at 3 (“When a father lives in a separate household, he is usually less committed to his child and less trusting of the child’s mother. Hence he is less willing to invest time and money in the child’s welfare.”). Thus, because of the absence of marriage and of a joint residence with their children, divorced fathers are typically less engaged with their kids. This, in turn, places additional burdens on divorced mothers.

4. Increased Demand for Commercial Surrogates Will Harm Women, Particularly Those in Disadvantaged Communities.

As previously discussed, redefining marriage will convey that gender diversity is not an inherent or valuable part of family life or of childrearing. See supra at 13. While some same-sex couples interested in raising children will simply adopt, “legalized same-sex marriage will likely spur demands for greater legal and social support for same-sex couples to have access to reproductive technologies, since only by using these technologies can they have their ‘own’ children.” Browning & Marquardt, supra, at 32. Indeed, fertility doctors have already noticed a surge in demand whenever a jurisdiction legalizes same-sex marriage. Michael Cook, The Link Between Rented Wombs and Gay Marriage, Mercatornet (July 19, 2012).23 Available at http://www.mercatornet.com/articles/view/the_ link_between_rented_wombs_and_gay_marriage.

Although the practice is relatively new, significant problems are already beginning to emerge from what amounts to a market for the sale of babies. Cheryl Miller, Babies for Sale, The New Atlantis (Summer 2006).24 Because surrogacy and sperm or egg donation is increasingly looking like a commercial market in which inputs are purchased as raw materials and the “product”—a child—is sold at a profit, the “buyers” of the product are increasingly acting like consumers of other commodities, experiencing “buyers remorse” and seeking “refunds” for children born with genetic diseases, for example, Alana Newman, Testimony in Opposition to AB460, California Assembly Committee on Health (April, 30 2013),25 or even filing suit for “wrongful birth” against a sperm bank that mistakenly supplied sperm from a donor of the “wrong” race, Complaint for Wrongful Birth and Breach of Warranty, Cramblett v. Midwest Sperm Bank, LLC, No.

2014-L-010159 (Ill. Cir. Ct., Cook County, filed Sept.

29, 2014).

Not surprisingly, the children who have been bought and sold in such a process are demonstrating unusually high levels of psychological angst from “genealogical bewilderment” and a sense of abandonment from the anonymous biological parent. See, e.g., H.J. Sants, Genealogical bewilderment in children with substitute parents, 37 BRIT. J. MED. PSYCHOL.

133, 133 (1964); Alana S. Newman, Children’s Rights, or Rights to Children?, Public Discourse (November Available at http://www.thenewatlantis.com/publications/babies-for-sale.

Available at http://ccgaction.org/uploaded_files/Testimony%20 of%20Alana%20S.%20Newman.pdf.



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