If the Supreme Court Listens to Millennials, Same Sex Marriage Will Become Legal


Editor's Note: Professor Tanya Washington filed an amicus brief in the United States v. Windsor case, along with professors Catherine Smith and Susannah Pollvogt from the University of Denver School of Law. Their brief, which challenged the characterization of the Defense of Marriage Act as a child protective measure, was cited by Windsor in her Supreme Court brief.

As the Supreme Court prepares to hear two same-sex marriage cases over the next two days, recent statistics reveal significant differences of opinion about gay marriage between Millennials, 18-30 year olds, and their parents and grandparents. A March 2013 Pew Research Center poll reports that 70% of Millennials support gay marriage, compared to 49% of Generation Xer’s, 38% of Baby Boomers, and 31% of the Silent Generation. What accounts for these vast differences of opinion and how could Millennials’ unique perspectives inform outcomes in the cases currently before the Supreme Court?

United States v. Windsor and Hollingsworth v. Perry involve laws containing restrictive definitions of marriage that exclude same-sex couples. Though they are referred to collectively as “the same-sex marriage cases,” different facts underwrite the two actions. 

At issue in Windsor is the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), which defines “marriage” and “spouse” to exclude members of same-sex couples and same-sex unions. The state of New York recognized the validity of Windor’s marriage to her partner. However, when her spouse died, the IRS, citing DOMA, denied Windsor a marital deduction to the estate tax on the property that passed to her, resulting in a $363,053 tax obligation.

Perry centers on the constitutionality of California’s Proposition 8, which prohibits same-sex marriage in the state. Same-sex couples, who were denied marriage licenses by county clerks enforcing Proposition 8, are challenging the law as an unconstitutional infringement of their fundamental right to marry.

To pass constitutional muster, DOMA and Proposition 8 must serve governmental interests. Justifications for same-sex marriage bans generally fall into four categories: 1) preserving and protecting traditional marriage; 2) protecting and serving children’s best interests by providing the optimal family environment for them; 3) legislating morality; and 4) preserving distinct gender-based identities. If the Supreme Court’s consideration of this issue is informed by Millennial perspectives, opponents of gay marriage bans have reason to be optimistic. 

Though Millennials remain faithful to the institution of marriage, they are not wedded (pun intended) to its traditional form. Having experienced and been exposed to a variety of modern familial structures, including: single parent homes, blended families, and families with two moms or two dads, Millennials’ attitudes toward marriage are more inclusive of non-traditional family arrangements than those of previous generations.

Pew Research surveys find that Millennials are less likely than older adults to believe that a home with a mother and a father is essential to children’s well-being and that single parenthood and parenting by unmarried couples are bad for society. They are also more inclined to question the relevance of sexual orientation to good parenting.

Millennials’ moral compass is calibrated differently than that of their parents and grandparents. They have openly gay friends, classmates and colleagues. For many Millennials, morality is inextricably intertwined with equality and leads many of them, across political, economic, racial and religious lines, to conclude that same-sex marriage bans just aren’t fair.

Finally, Milennials have very different expectations regarding gender identity and how it dictates behavior, choices and opportunity. The blurred lines between women’s and men’s roles in the home, the marketplace, and the workplace motivate them to be more inclined to ignore gendered boundaries established by previous generations. Many believe, and have experienced, that Mr. Moms and working mothers make great parents and role models for children.

The justifications generally offered in defense of marriage bans simply don’t resonate with the experiences and sensibilities of the majority of Millennials, as recent polls report. Time will tell whether the Supreme Court’s decisions in Perry and Windsor will reflect this generational shift in public opinion about same-sex marriage. However, notwithstanding the outcome in those cases, it is clear that the Millennials’ time has come.