Why Courts Are
Adopting Gay Parenting
By Dahlia Lithwick,
washingtonpost.com from the Web, March 12, 2006
A heads-up to those of you still
fretting about the alleged evils of gay marriage: The parade has moved on.
Try as you may to vote, or legislate your way out of a country that solemnizes
such relationships, committed gay couples are already giving birth to, adopting
and fostering children. Whether or not same-sex marriage becomes widely
legal in America, same-sex parenting is a done deal.
Around the country, courts are increasingly recognizing that reality, with more
generous notions of what "parenting" and "family" mean. Critics are
launching the predictable counterattack: deriding gay parenting with the
same claims they use to attack gay marriage and dismissing any judge who
recognizes such relationships as an unprincipled liberal activist. But
there's a crucial legal difference between claims that liberal judges are
inventing a right to same-sex marriage and inventing a right to same-sex
parents: Judges who do the latter are adhering to a bedrock principle of
family law.
The Delaware Supreme Court found last week that a gay woman could retain joint
custody of triplets she co-parented with their biological mother. That
makes Delaware one of a growing number of jurisdictions unwilling to reflexively
downgrade involved gay parents to third-party interlopers. According to
the 2000 Census, 34 percent of female same-sex households and 22 percent of male
ones include children. The Lambda Legal Defense Fund estimates 6 million
to 10 million gay parents are caring for 6 million to 14 million children.
Adoption laws vary widely by state. Most states allow adoption by single
parents, including gay parents. Only Florida categorically prohibits gay
parents from adopting, although Mississippi, Nebraska, Oklahoma, Utah and North
Dakota do so as a matter of practice. Alabama, Georgia, Kentucky,
Tennessee, Ohio and Missouri are now considering constitutional amendments or
laws banning gay adoption. Three states (Arkansas, Nebraska and Utah)
prohibit gay people from even serving as foster parents.
These legislative bans fly in the face of both necessity and truth. There
are 119,000 children waiting to be adopted in this country, about half of them
racial and ethnic minorities. There are about 588,000 children in foster
care. Legislators -- like a clutch of Ohio Republicans -- pushing bans on
gay adoption and fostering must argue that it's better for these children to
languish in state custody, or bounce from foster home to foster home, than be
raised by gay parents.
Just as there is no data to support the claim that children raised by married
gay parents fare worse than those raised by heterosexual ones, there is no data
to suggest that foster care is preferable to gay parenting. That's why
almost every serious child welfare entity, including the American Academy of
Pediatrics, the Child Welfare League of America and the American Psychological
Association, recognizes that gay parents are no worse than heterosexual ones.
Efforts to prevent gay parents from obtaining joint custody over their children
crash against the same practical realities. The majority of states, by
denying gay partners the right to "second-parent" adoptions or joint custody
with a gay partner, effectively enshrine a legal regime in which millions of
children have one legal parent and one legal stranger. That means that
millions of children lack the security of two parents for purposes of health
insurance, life insurance, inheritance, child support payments, emergency
medical authorizations or parental leave, particularly in the event that their
parents separate or their primary parent dies.
In order to defend the current adoption and custody regimes, therefore, you need
to subordinate the practical and emotional interests of children to the moral
preferences of lawmakers. That is precisely what family law prohibits.
The arguments for locking gay parents out of formal parenting arrangements
include the familiar litany of complaints about health, morals and the sanctity
of traditional marriage. But when real family court judges face real
children in real family relationships, those arguments are quickly blunted by
real concerns. In the Weekly Standard, Sara Butler Nardo of the Institute
for American Values takes just such a whack at the expanding legal notion of
parenting. She dismisses "de facto" or "psychological" parenthood --
equitable remedies used by judges to preserve relationships between children and
their gay parents -- as a wacky "new concept" invented by reckless judges to
"serve adults more than children." Nardo warns that while we are loudly
and properly debating the legal change in the word marriage, the legal
definition of the word parent is "quietly" changing under our noses.
But where Nardo and social conservatives are dead wrong is just here: If
judges are increasingly inclined to recognize the validity of same-sex parenting
arrangements, it's not because they are mangling a long-established tradition of
family law. Courts that adopt broader visions of "parent" and "family"
aren't reading radical new rights into their state constitutions. They are
doing precisely what family courts are asked to do: Make a determination
about what's in the "best interest of the child." That remains the
polestar for judicial decision-making in both the adoption and custody contexts.
As it turns out, children usually have more urgent concerns than what their
parents do in bed.
The best-interest test reinforces the legal proposition that children are not
their parents' chattel; the state has an obligation to privilege their needs,
sometimes even over the needs of their own parents and other adults. The
test is a not a fixed rule, precisely because judges must figure out what's best
for kids on a fact-specific basis. And while judges can and should be able
to make subjective decisions about whether two-parent adoptive homes are better
than single-parent homes, they also need to be free to decide that it's
preferable for little Joey to have a gay adoptive father than none, or to have
two legal mommies rather than one.
Rules rooted in sweeping moral judgments don't generally work in family law for
the same reason they don't work for families: Kids love and need the
parents they have, not necessarily the parents we love.
dahlialithwick@hotmail.com
Dahlia Lithwick
covers legal affairs for Slate, the online magazine at
www.slate.com.
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