Supreme Court Used Indian Law to Prevent Birth Control for Women

AP photo
AP photo


Rob Capriccioso, Indian Country Today


In wake of the 5 – 4 decision by the Supreme Court in Burwell v. Hobby Lobby issued June 30, political commentary on religious freedom, abortion rights, and the war on women has been endless.

Less talked about in the mainstream has been that the court used an Indian-centric law, the Religious Freedom Restoration Act (RFRA) of 1993, to help it come to its opinion, which said that some family-owned and other closely held businesses, like the Hobby Lobby craft store, are allowed to opt out of the federal Obamacare mandate requiring such companies to pay for contraceptives in health coverage for their workers.

As the conservative justices wrote for the majority, the RFRA was enacted by Congress in 1993 in response to a 1990 high court decision, Dept. of Human Resources of Ore. v. Smith, which found that a state could deny unemployment benefits to a person fired for using peyote, even if the drug was used as part of a religious ritual.

The Smith case came to fore after two members of the Native American Church were fired for ingesting peyote for sacramental purposes and then were later denied unemployment benefits by the state of Oregon because consuming peyote was against the law there.

Enter Congress and its RFRA, aimed at preventing such religious-based discrimination. It passed with almost unanimous support in both the House and Senate, and President Bill Clinton signed it into law in 1993.

One year later, the House Subcommittee on Native American Affairs and the Senate Committee on Indian Affairs further dealt with the narrow issue of Smith on the specific issue of the sacramental use of peyote.

“We amended the American Indian Religious Freedom Act [AIRFA] in 1994 to allow for the sacramental use of peyote,” says Tadd Johnson, former director of the subcommittee and now the head of the American Indian studies department at the University of Minnesota at Duluth. “President Clinton signed it into law. This AIRFA amendment on peyote still stands.”

Using Peyote to Prevent Birth Control

Fast forward 20 years: The owners of Hobby Lobby and two other closely held for-profit corporations who believe life begins at conception and that it would violate their Christian beliefs to pay for birth control, sued the federal government under the auspices of RFRA.

Writing for the majority, Justice Samuel Alito agreed with their argument: “As applied to closely held corporations, the [Department of Health and Human Services] regulations imposing the contraceptive mandate [of Obamacare] violate RFRA,” he wrote. “RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel.”

The high court further offered that the federal government could find ways to pay for birth control coverage if it wishes to do so.

And that is how a law rooted in protecting Indian religious freedom was successfully used by major companies to shield them from having to pay for birth control for employees covered under the companies’ health plans.

Say What?

It was a shocking development to many Indian-focused legal experts who were working in the trenches during the peyote-based foundations of RFRA, and who have since seen that very law applied by the federal courts in ways that they feel are unjust toward American Indian religious practices involving sacred sites.

Stephen Pevar, a lawyer with the American Civil Liberties Union (ACLU) who has long argued in favor of protections for Indian religious practices, said he never envisioned that the RFRA would be used for such a purpose. “[I]t never occurred to me,” he said. “I doubt if it occurred to anyone.”

Pevar followed the drafting of the RFRA and early Indian advocacy for it by respected Native American legal scholars including Jack Trope, director of the Association on American Indian Affairs, and Walter Echo-Hawk.

Trope, too, was surprised to see the RFRA used in such a manner. “I can’t say that I ever really thought about the issue of for profit corporations utilizing RFRA until these cases came up,” he says.

Using RFRA Against Indians & Women

In 1997, Indian-focused legal advocates were disturbed to see the RFRA watered down by the Supreme Court, which ruled then in City of Boerne v. Flores that the law was applicable to the federal government but not to the states. Thus, tribal citizens who have their religious freedoms usurped by states, as happened in the original Smith Peyote case, are left unprotected by federal law.

Of more concern to such advocates is that the high court has never used the RFRA to do what it was intended to do: protect Indian religious freedoms. Yet now, it is using the law to limit the rights of women who want to use their healthcare coverage to buy birth control.

Pevar sees a parallel between how the high court treats Indians and women. “The Supreme Court, with rare exceptions, has been insensitive to women’s issues, and the Court’s record is even worse—far worse—on Indian issues,” he says. “In the last 30 years, Indians and tribes have lost at least 75 percent of their cases in the Supreme Court. The Supreme Court is asked to review some 7,000 cases a year but selects fewer than 100.

“The fact that the Court selects so many Indian cases and then rules against Indians in those cases suggests a desire to harm Indian interests.”

A Silver Lining for Sacred Sites?

If there is any good news for Indians to come from the case, Trope says that it provides an outline to allow Native-focused lawyers to strengthen their arguments in the federal courts regarding the use of RFRA to protect sacred sites in future cases.

Trope notes that in the recent Navajo Nation case before the Ninth Circuit focused on the tribe’s contention that the San Francisco Peaks are sacred to the tribe and thus corporate development on them should be limited, “one of the main arguments made against us was that RFRA was meant to turn back the clock to the day before the Smith decision in 1990.”

Such rationale meant that decisions like the Supreme Court’s in the 1988 Lyng case – which interpreted the First Amendment in a way that did not provide protection to Indian sacred sites – would still be good law, despite the existence of RFRA. (The Lyng case centered on an American Indian religious-based challenge to the development of a road for timber harvesting.)

But “[t]he court in the Hobby Lobby case rejected the idea that the intent of RFRA was only to restore the law as it was in 1990 before Smith,” Trope says. “Instead, the court essentially held that RFRA provides broader protection than was provided by the First Amendment prior to the Smith case.”

Because the application of RFRA to Native sacred sites has been unresolved to date – notwithstanding the Ninth Circuit’s toiling in Navajo Nation’s San Francisco Peaks case – Trope finds in the latest decision a reason to be hopeful.

“[O]nly time will tell whether the interpretation of RFRA in Hobby Lobby turns out to be helpful in future sacred sites cases or whether courts will continue to find ways to reject Indian religious freedom claims,” says Trope.



Supreme Court hands Tsilhqot’in major victory in historic ruling


APTN National News
OTTAWA–The Supreme Court of Canada has granted a declaration of Aboriginal title to the Tsilhqot’in over 1,750 square kilometres of territory in a historic ruling handed down Thursday.

This is the first time the high court has ever granted a declaration of Aboriginal title to a First Nation. The ruling also acknowledges Indigenous nations can claim occupancy and control over vast swaths of land beyond specific settlement sites, provides more clarity on Aboriginal title and sets out the parameters for government “incursion” into land under Aboriginal title.

The ruling also hands a final victory to the Tsilhqot’in Nation, which encompasses six communities with a population of about 3,000 people, over British Columbia in a long-running battle, which included blockades, over logging permits in their claimed territory.

“I would allow the appeal and grant a declaration of Aboriginal title over the area at issue, as requested by the Tsilhqot’in,” said the unanimous ruling, written by Chief Justice Beverley McLachlin. “I further declare that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorization.”

British Columbia and Ottawa both opposed the Tsilhqot’in claim to title.

The Supreme Court blasted the B.C. Court of Appeal, which had overturned a lower court ruling on what territory the Tsilhqot’in could claim under Aboriginal title. The high court found the Court of Appeal’s definition of occupancy too narrow.

“There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the court of appeal held,” said the ruling. “Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is ‘sufficient’ use to ground Aboriginal title.”

The high court said that Aboriginal title could be declared over territory “over which the group exercised effective control at the time of assertion of European sovereignty.”

Tsilhqot’in Nation Tribal Chair Joe Alphonse called the ruling “amazing” and said it marked the beginning of a “new Canada.”

Alphonse said the ruling also sent a message to Canada’s political leaders.

“It sends a strong message to all provincial leaders and Stephen Harper to deal with us in an honourable and respectful way,” he said.

Supreme Court Sides With Feds On Marijuana Prohibition

The highest court says there’s not enough evidence to warrant taking a second look at marijuana’s Schedule I status.

By Katie Rucke, Mint Press News

Despite a dramatic increase in public support for marijuana legalization in the U.S., the federal government doesn’t appear to be budging on decriminalization, legalization or “downscheduling” the substance anytime soon.

Last week the U.S. Supreme Court had the opportunity to review and reverse a ruling from a lower court that upheld the federal government’s current classification of marijuana as a Schedule I substance, but the high court declined to do so.

The ruling in question was issued this past January by the U.S. Court of Appeals for the District of Columbia, which ruled that the U.S. Drug Enforcement Administration (DEA) was in the right when it rejected a petition to conduct a scientific review of marijuana’s safety and therapeutic efficacy.

The D.C. Court of Appeals said that the DEA was correct in its assertion that an insufficient number of clinical studies exist to “warrant a judicial review of cannabis’ federally prohibited status,” which the U.S. Supreme Court agreed with.

But as marijuana legalization advocate Russ Belville pointed out in an article for High Times, the court’s ruling is more about whether or not the DEA was following its own rules than whether or not marijuana should be rescheduled.

Currently marijuana is classified as a Schedule I substance, meaning that the U.S. government does not recognize a valid use of marijuana at any time — even for medical purposes — and believes marijuana is highly addictive, has a high potential for abuse, and functions as a gateway drug. Other Schedule I substances include heroin and phencyclidine (PCP).

Moving marijuana to a lower classification such as Schedule V would mean that marijuana had known health benefits and was not likely to be abused as much as other drugs.

“The DEA requires we show real, FDA-approved research proving marijuana is medical, safe and non-addictive, and since the DEA won’t let that research happen, there is nothing forcing them to change the scheduling of cannabis,” Belville wrote.

“But what about the 19,000+ published studies on cannabis’ medical benefits? The federal government patents on the medical effects of cannabinoids?  The four surviving federal medical marijuana patients still receiving U.S. government-grown schwag? The 20 states with medical marijuana and the millions who are living testament to marijuana’s medical miracles?”

Each year the U.S. spends about $40 billion fighting the war on drugs, even though no one has ever died from consuming or smoking too much marijuana.

Since a large percentage of the DEA’s money comes from drug sting operations, specifically marijuana trafficking, many marijuana advocates have questioned whether the DEA opposes legalization simply because they don’t want to lose that income. According to a report from Americans for Safe Access, a medical marijuana patient advocacy group, each raid costs taxpayers around $17,000.


State vs. federal law

Since 1996, 20 states have legalized marijuana for medical use, and last year two states — Washington and Colorado — legalized recreational use of the drug, creating a direct conflict between state and federal law.

Though some lawmakers such as Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, have pushed for the passage of federal legislation that would allow states to legalize marijuana for medical or recreational use, citing a waste of taxpayer and law enforcement resources, most lawmakers have been rather passive toward the legalization issue.

The Obama administration has been quiet in its stance on marijuana legalization, even though during his 2008 bid for the White House Obama indicated he would not crack down on medical marijuana users.

But in an interview with Mint Press News, Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML), a marijuana legalization advocacy group, said the federal government has continued to raid large-scale marijuana retailers around the country, and as of November 2012, Obama had shut down more dispensaries that President George W. Bush did in his eight years in office.

However, in response to the passage of the legalization legislation in Colorado and Washington, the U.S. Department of Justice (DOJ) announced last month that it had decided to defer its legal right to challenge the marijuana legalization laws and would not file a lawsuit against either state for failure to follow the laws under the federal Controlled Substances Act — at least for now.

As Mint Press News previously reported, the DOJ’s announcement made it clear that both states would be allowed to continue implementing state rules and regulations for recreational marijuana even though the substance will remain illegal under federal law. However the DOJ failed to mention anything about states that legalized medical marijuana or industrial hemp.

Though the DOJ’s new stance on marijuana wasn’t as progressive as many had hoped, states have continued to introduce legislation that legalizes medical marijuana, recreational marijuana and/or industrial hemp.

Why? Because legalization appears to be what the majority of Americans want.

A poll released earlier this year by Quinnipiac University found that as of December 2012, voters supported legalization of marijuana 51 to 44 percent. As Mother Jones reported, “Even in the relatively conservative states of Florida, Iowa and Kentucky, polls released in the past week have shown majority support for recently proposed medical marijuana laws.”


Legalization: only a matter of time?

In 2014, voters in Alaska are expected to vote on legislation that would legalize recreational marijuana, and by 2017, ten other states are expected to also have initiatives on the ballot that would legalize marijuana.

“Most Americans are tired of seeing their tax dollars used to arrest and prosecute adults for using a substance that is objectively less harmful than alcohol,” said Marijuana Policy Project executive director Rob Kampia. “Voters and state legislators are ready for change, and the federal government appears to be ready, as well.

“Marijuana prohibition has been just as problematic and counterproductive as alcohol prohibition,” Kampia said. “We look forward to working with elected officials, community leaders, organizations, and other local and national allies to develop more effective and efficient marijuana policies.”

One of those ten states is California.

Though California was the first state to legalize medical marijuana, voters in the state have yet to pass legislation legalizing recreational use of the substance. Many advocates said that because the state has borne the brunt of the federal government’s crackdown on marijuana, many voters in the state were likely reluctant to pass any legislation to further legalize the substance.

But on Thursday, the American Civil Liberties Union announced they were working to put legalization back on the state’s ballot. Before any legislation appears on the ballot, however, the ACLU said it would be creating a new panel to study marijuana legalization in California in preparation for a 2016 ballot measure that would legalize the substance.

The panel is to be led by the state’s Lt. Gov. Gavin Newsom, and will include academics, drug policy experts, law enforcement authorities, and officials from Colorado and Washington.

Newsom said he is in support of legalizing marijuana because “enough’s enough. I can’t sit back and support the status quo any longer.” He explained that even though he doesn’t smoke marijuana, he isn’t concerned about any political fallout that may occur for his decision to take a stand on the issue.

“To me, it’s like smoking anything else — I want a regulatory regime that doesn’t advertise to kids, that doesn’t allow public use and secondhand smoke,” he said.

According to the ACLU, while California’s 2010 legalization measure was defeated with 53.5 percent of voters voting against the measure, a new poll found that legalizing recreational marijuana received support from 65 percent of polled voters.

In addition to efforts to legalize recreational marijuana, a few states are also considering legislation that would legalize medical marijuana, including Ohio, Minnesota, New York, Pennsylvania and Wisconsin.

Leaders Praise Supreme Court Decision to Uphold Voting Rights

Tanya Lee, Indian Country Today Media Network

Tribal leaders in Arizona praised the Supreme Court’s June 17 decision to strike down Arizona’s Proposition 200, which effectively restricted the voting rights of American Indians in the state.

The Hopi Tribe, the Inter Tribal Council of Arizona and other groups in the voting rights case, Arizona v. Inter Tribal Council of Arizona, were represented by the Lawyers’ Committee for Civil Rights Under Law, which characterized the Arizona law as a “state voter suppression measure.” The law would have required potential voters present proof of citizenship in order to register to vote by mail.

Hopi Tribal Chairman LeRoy N. Shingoitewa says the tribe took the case to the country’s highest court because “no tribal member should be required to come in and say, ‘I’m a citizen of the United States.’ We’ve always been here. Many tribal members were born in homes. Many have no birth certificate. It’s not right for anyone to deny us the right to vote.”

Yavapai-Apache Nation Tribal Councilwoman Lorna Hazelwood also welcomes the ruling. “As a sovereign Indian tribe in Arizona, we recognize that the Supreme Court’s ruling on voter’s rights is a victory for Arizona tribes. Our people have been challenged for decades in engaging in the voting process, just based on the historical segregation of demographics. The 2004 voter approved Prop 200, continued to further discourage election participation of our people. The Supreme Court’s decision eliminating this provision is commended and welcomed by our Tribal Leader’s and eliminates the discouragement and challenges of our tribal voters.”

On the other hand, Gila River Indian Community Gov. Gregory Mendoza says that the ruling, while allowing “voter registration drives and individual registrations to continue without eligible voter registrants being burdened with providing documentation of citizenships,” still leaves open the possibility of voter discrimination. “The Court provided that Arizona cannot require individuals registering to vote to provide evidence of citizenship when they register [to vote] using a federal form. Nevertheless, the state can require individuals to prove their citizenship with documents such as a driver’s license or passport when registering with a state form…. The ruling left in place a dual-registration system; a federal system and a state system. Anecdotal evidence suggests that Community members predominately use the state form.”

Gov. Mendoza’s concern that voter discrimination could continue in Arizona was underscored when on June 25, the Supreme Court issued its ruling in Shelby County v. Holder. Shelby County, Alabama, argued that the special circumstances under which the federal government assumed the authority to approve changes to state voting procedures, among them lower voter turnout among minorities, specifically African Americans, no longer exist 50 years after the Voting Rights Act was passed in 1965. Justice Clarence Thomas, in an opinion concurring with the majority opinion written by Chief Justice John Roberts, wrote, “Regardless of how one looks at that record, no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that clearly distinguished the covered jurisdictions from the rest of the nation in 1965.”

The court, in its 5-4 decision, agreed and struck down the part of the law that determined what criteria would be used to put a state under federal oversight in regard to voting rights in elections for everything from choosing a U.S. president to choosing local school board members.

In their dissenting opinion, Supreme Court Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote that “second-generation barriers,” such as gerrymandering district boundaries to put a majority of whites in each voting district and at-large voting, which dilutes the voting power of minorities, still exist. They noted that “between 1982 and 2006, DOJ [U.S. Department of Justice] objections blocked over 700 voting changes based on a determination that the changes were discriminatory.”

Arizona was among the nine states that were covered by the Voting Rights Act and that had to seek preclearance before it could make any changes to its voting procedures, which included how districts were drawn, where polling places were located and when they were open. That is no longer the case. What the Supreme Court gave with one hand, it may have taken back with the other.


Related stories:

Supreme Court Backs Cheap Tricks That Keep You From Voting

Custer’s Revenge? Supreme Court Guts VRA on Little Big Horn Anniversary

Supreme Court Ruling Impacts Voting Rights in Indian Country

Supreme Court Upholds American Indian Voting Rights



Gay marriage ruling: Supreme Court finds DOMA unconstitutional

David G. Savage, The Los Angeles Times

WASHINGTON — The Supreme Court struck down a key part of the federal Defense of Marriage Act on Wednesday and declared that same-sex couples who are legally married deserve equal rights to the benefits under federal law that go to all other married couples.

The decision is a landmark win for the gay rights movement. It voids a section of the law known as DOMA, which was adopted with bipartisan support in Congress in 1996 to deny all benefits and recognition to same-sex couples.

At that time, no state permitted gays and lesbians to marry. Now, 12 states and the District of Columbia authorize same-sex marriages.


Justice Anthony Kennedy, speaking for the 5-4 majority, said DOMA was unconstitutional because it violated the right to liberty and to equal protection for gay couples.

“By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute” violates the Constitution, he said

Dissenting were Justices John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas.

The ruling means that more than 100,000 gay and lesbian couples who are legally married will be able to take advantage of tax breaks, pension rights and other benefits that are available to other married couples.

Four years ago, several gay couples who were married in Massachusetts launched a lawsuit to challenge DOMA, arguing it denied them equal protection of the laws. They won before a federal judge in Boston and before the federal appeals court there.

DOCUMENTS: Supreme Court decisions on DOMA, Prop. 8

Their win prompted the Obama administration to switch course and join with the challengers, who said the law was discriminatory. House Republicans voted to take up the legal defense of the law.

When the issue reached the Supreme Court, the justices voted to decide a case brought by Edith Windsor, a New York widow who was sent a $363,000 estate tax bill by the Internal Revenue Service after her wife died in 2009.

The decision leaves in place another provision in the law that says no state is required to recognize gay marriages performed in any other state. That provision was not under challenge.

Supreme Court Reverses, Remands Baby Veronica Case Back to South Carolina

 Dusten Brown with daughter Baby Veronica in their Nowata, Oklahoma home (Cherokee Nation)
Dusten Brown with daughter Baby Veronica in their Nowata, Oklahoma home (Cherokee Nation)

Suzette Brewer, Indian Country Today Media Network

In a move that ensured the protracted continuance of the four-year custody battle over Veronica Brown, the Supreme Court today reversed and remanded Adoptive Couple v. Baby Girl back to the South Carolina courts for further review. In a narrow 5-4 ruling that revealed the philosophical fracture among the justices, the nation’s highest Court held that sections of the Indian Child Welfare Act “did not bar the termination of parental rights” under state law.

Justice Samuel Alito, writing for the majority, rested the majority argument on the hair-splitting phrase “continued custody,” holding that “showing that serious harm to the Indian child is likely to result from the parent’s ‘continued custody’ of the child—does not apply when, as here, the relevant parent never had custody of the child.” Further, the majority ruled that existing Indian family placement preference do not apply when “no alternative party has formally sought to adopt the child.”

Though the Court did not terminate the parental rights of Dusten Brown or transfer custody of Veronica back to the Capobiancos, the justices left intact the remainder of the Indian Child Welfare Act and remanded the case back to South Carolina. Now, Brown and the Capobiancos will square off yet again in what has become one of the longest, most bitter, contentious and expensive custody fights in U.S. History. In his ominous concurrence with the majority ruling, Justice Clarence Thomas raised the stakes by included a voluminous appraisal of the Indian Commerce Clause and its rhetorical application in the difference between “tribes” and “Indian persons.”

In her dissent, Justice Sonia Sotomayor made clear that simply because the majority disagreed with the Congressional policies outlined in ICWA, it was not a valid reason to “distort the provisions of the Act.”

“The majority does not and cannot reasonably dispute that ICWA grants biological fathers, as “parent[s],” the right to be present at a termination of parental rights proceeding and to have their views and claims heard there.” wrote Justice Sotomayor.  “But the majority gives with one hand and takes away with the other. Having assumed a uniform federal definition of “parent” that confers certain procedural rights, the majority then illogically concludes that ICWA’ substantive protections are available only to a subset of “parent[s]”: those who have previously had physical or state-recognized legal custody of his or her child. The statute does not support this departure.”

Court watchers in this case have now shifted the focus from the stricken provisions of the Indian Child Welfare Act to the broader, more widely interpreted standard of “best interest analysis” in determining custodial placement of Veronica between Matt and Melanie Capobianco and Dusten and Robin Brown.

“What this Court said is that going forward, unwed birth fathers who do not take the steps required to acquire parental rights will not benefit from the provisions in ICWA,” said Martin Guggenheim, Professor of Law at New York University. “By remanding back to the lower courts, ‘best interest’ is now a new question before the courts, and that she may suffer a second disruption in her life. But Sotomayor did remind the reader in her dissent that the Cherokee Nation could put forward other options in jurisdiction and adoptive preference. Either way, the Supreme Court won’t care what South Carolina does with respect to interest, though the length of time [Veronica] spent with the father is now a factor in his favor.”

While the Court did strike certain sections of the law, it left intact the rest of the act, which is still applicable under federal mandate.

“We’re relieved that the Court upheld Congressional authority to protect Indian children,” said Terry Cross, executive director of the National Indian Child Welfare Association. “This decision only applies to unwed fathers, but it remains our job to make sure people know that ICWA is still law, it’s still in force and they have to follow it.”

At the Cherokee Nation tribal headquarters in Tahlequah, Oklahoma, Principal Chief Bill John Baker pledged the tribe’s support in assisting Dusten Brown in the duration of this litigation.

“Certainly we’re disappointed with the ruling, namely because Dusten Brown now has a whole litany of legal issues still before him,” said Baker. “But we are hopeful that he will prevail because the facts in this case are on his side. As a father and grandfather, it’s hard to see any parent be told that they can’t raise their own biological child. Regardless of the circumstances, it has been extremely painful to watch.”



It’s not gender of parents, but quality of care, researchers say

Research into the effects of same-sex parenting shows that the sexual orientation of parents is not a major determinant in how well children fare. What matters more, researchers found, is the quality of parenting and the family’s economic well-being.

By Sandhya Somashekhar, The Washington Post

From left, the Rev. Rebecca Voelkel, partner Maggie George and their daughter Shannon Voelkel take part in a demonstration in front of the U.S. Supreme Court on Tuesday as justices heard arguments on the California Proposition 8 appeal. Win McNamee / Getty Images
From left, the Rev. Rebecca Voelkel, partner Maggie George and their daughter Shannon Voelkel take part in a demonstration in front of the U.S. Supreme Court on Tuesday as justices heard arguments on the California Proposition 8 appeal. Win McNamee / Getty Images

WASHINGTON — Amid the legal arguments at Tuesday’s Supreme Court hearing on same-sex marriage, there loomed a social-science question: How well do children turn out when they are raised by gay parents?

Justice Anthony Kennedy, who is widely considered the swing vote, called the topic “uncharted waters.” Conservative Justice Samuel Alito Jr. wryly asked, “You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet?”

Indeed, gay marriage is a relatively new phenomenon in the United States. It has only been legal since 2004, when Massachusetts began issuing marriage licenses to same-sex couples. Eight more states and Washington have legalized same-sex nuptials since then, but they have been banned in 35 states.

Researchers have been delving into the effects of same-sex parenting only since the 1980s and 1990s. Most of the studies involve relatively small samples because of the rarity of such families.

Still, there is a growing consensus among experts that the sexual orientation of parents is not a major determinant in how well children fare in school, on cognitive tests and in terms of their emotional development.

What matters more, researchers found, is the quality of parenting and the family’s economic well-being.

“I can tell you we’re never going to get the perfect science, but what you have right now is good-enough science,” said Benjamin Siegel, a professor of pediatrics at Boston University School of Medicine. “The data we have right now are good enough to know what’s good for kids.”

Siegel co-authored a report issued by the American Academy of Pediatrics last week when it came out in favor of legalizing same-sex marriage. The group looked at dozens of studies conducted over 30 years and concluded that legalizing same-sex marriage would strengthen families and benefit children.

The best study, Siegel said, is the National Longitudinal Lesbian Family Study, which began in 1986 with 154 lesbian mothers who conceived children through artificial insemination. A recent look at 78 offspring found that the children did fine — better, even, than children in a similar study involving more diverse families.

Many opponents of same-sex marriage argue that the academy’s conclusions are premature. They point to some recent studies, including one from Mark Regnerus, a sociology professor from the University of Texas at Austin.

Regnerus, who could not be reached for this article, found that adults who reported being raised by a person who had a homosexual experience were more likely to be on welfare or experience sexual abuse.

Regnerus has been the subject of intense criticism from mainstream researchers and pro-gay marriage activists. But opponents of same-sex marriage say his work should provide a note of caution on an issue that has yet to be studied in adequate depth.

“What the social science makes clear, and it has for several decades, is that children tend to do best when they’re raised by their married biological parents,” said Jennifer Marshall, director of domestic policy studies for the conservative Heritage Institute. “In the case of same-sex households, there is not yet evidence that (children) are going to be the same. There’s every reason to believe that different family structures will have different outcomes.”

Susan Brown, a professor of sociology at Bowling Green State University in Ohio who studies family structures, said it is true that decades of research show that children turn out slightly better when they are raised by their biological parents compared with those reared by single parents or in “step” households.

But children raised in committed same-sex couple-led households do not appear to do statistically worse, she said.

“One thing we’re finding that’s very important for children is stability in their family life,” Brown said.

“To the extent that marriage is a vehicle through which children can achieve stability,” she said, “It only follows that marriage is something that would be beneficial to children.”