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Family FuseWhy the rules about gay parenting are changing under your nose.

By Dahlia Lithwick
Posted Saturday, March 11, 2006, at 2:02 AM ET

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. And around the country, courts are increasingly beginning to recognize 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 claims that they are 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 this 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. Good data are extremely hard to obtain here, but the Lambda Legal Defense Fund estimates that 6 million to 10 million gay parents are caring for 6 million to 14 million children in this country.

As is the case with much of family law, 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 approximately 588,000 children in foster care. Legislators—like a clutch of Ohio Republicans—pushing bans on gay adoption and fostering must thus argue, without empirical evidence, 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 who want them. And just as there are no data to support the claim that children raised by married gay parents fare worse than children raised by heterosexual parents, there are no data to suggest that foster care is preferable to gay parenting. That's why virtually every serious child welfare entity, including the American Academy of Pediatrics, the American Academy of Family Physicians, the Child Welfare League of America, the National Association of Social Workers, and the American Psychological Association, recognize 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 friend-of-the-family. That means, as a practical matter, that millions of children have neither the certainty nor 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.

To defend the current adoption and custody regimes, then, you need to subordinate the practical and emotional interests of these 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 long-term family relationships, those arguments are quickly blunted by real concerns. In this week's Weekly Standard, Sara Butler Nardo, of the Institute for American Values, tries to take 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" (it's been around for years) 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 in fact judges around this country are increasingly inclined to recognize the validity of same-sex parenting arrangements, it's not because they are activists, or because they're mangling a long-established tradition of family law to do so. 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 standard remains the polestar for judicial decision-making in both the adoption and custody contexts. And, as it turns out, most children usually have larger and 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 meddlesome adults. The best interest test is a legal standard, and not a fixed rule, precisely because judges must figure out what's best for kids on a fact-specific, case-by-case basis. And while judges can and should be able to make subjective policy decisions about whether two-parent adoptive homes are better than single-parent homes, they also need to be free to decide that in this case it's preferable for little Joey to have a gay adoptive father than none; or to have two legal mommies rather than one. Categorical 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.

A version of this article also appears in the Outlook section of the Sunday Washington Post.

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Dahlia Lithwick is a Slate senior editor.
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Remarks from the Fray

Lithwick cites a study by the Lambda Legal Defense Fund that estimates 6-14 million children have gay or lesbian parents. Yet the link she provides is from the National Adoption Information Clearinghouse (a service of US Department of Health and Human Services) which in turn cites Andrew Sullivan (involuntary shudder) and the Harvard Law Review.I suppose Sullivan (involuntary shudder) and the editors of the Harvard Law Review might have gotten THEIR information from the Lamda Legal Defense Fund, but the source does not make this clear. Regardless, that's a pretty big ballpark figure (i.e. the maximum is over twice the minimum). I wonder what the figure would be if we counted all of the CLOSETED gay or lesbian parents in heterosexual relationships?

--Ang_Cho

(To reply, Click Here.)

The nature of our associations, especially who forms our "family," must not be defined narrowly or by slavishly appealing to traditional versions of this term. The growth of stepfamilies, divorces, alternative living arrangements, and so on shows the complexity and ever changing meaning of this term. [B]eing a parent is more than merely supplying the sperm or the egg, it is not just being the "right" religion, race, sexuality, or whatever. It is being there for your children and all that "parenthood" entails. All you parents (and children) know for what I speak, probably better than I.

It warrants note that these days even being a parent by blood might not be enough if you are a certain sexuality. But, going further, leaving a child in foster home or depriving him or her of two parents instead of one because of homosexuality is clearly not in the "best interests" of the child in any number of cases.

The alternative is clearly irrational and based on prejudice and animus that family courts ... who live in the real world more than many of the anti-gay activists out there ... rightly see as such.-j

--Joe_JP

(To reply, Click Here.)

 [...] Lithwick has made a logical fallacy by not recognizing the other side of the debate. The crux of her argument relies on the fact that family law states that courts are required to rule in favor of what's best for the child. However, if one WAS to be homophobic [...] or did believe that homosexuality was against the law [...], then to set up a child with two gay parents would be to establish, at best two undesirables, or, at worst, two criminals as role models for the children.

Even more damaging to the argument is that Lithwick's argument relies on empathy for the child. Assuming again that one was homophobic, this would leave one imagining oneself as a homophobic child "doomed" to life with two gay parents. Imagine then, the trauma of moving in together and the shame of knowing that your parents were gay. Psychological trauma is most definitely NOT in the best interests of the child. [...]

To deduce that gay parents are OK because it's in the best interest of the child, is to assume that being gay is OK in both the eyes of the government and the child. Unfortunately, that isn't a given, and so the same argument can be made against gay parenting.

--atsumori

(To reply, Click Here.)

The Government can't make marriage legal or illegal, the Government can only recognize or not recognize a status of marriage. This means the status of marriage is actually left to the individual to recognize as true or not true. No Legislature or Court can decide that issue for anyone, nor can they make you comply against your will. Like it or not it is a social Government and not a Government of laws. To blindly accept the highly touted phrase "We are a Government of laws" is a citizenless government.

--BaselessGull

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