[Mb-civic] Why Courts Are Adopting Gay Parenting - Dahlia Lithwick - Washington Post Sunday Outlook

[William Swiggard]

Why Courts Are Adopting Gay Parenting
<>
By Dahlia Lithwick
The Washington Post Sunday Outlook
Sunday, March 12, 2006; B02

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 
<http://www.weeklystandard.com/Content/Public/Articles/000/000/011/918sohds.asp> 
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 at hotmail.com <mailto:dahlialithwick at hotmail.com>

Dahlia Lithwick covers legal affairs for Slate, the online magazine at 
www.slate.com.

http://www.washingtonpost.com/wp-dyn/content/article/2006/03/10/AR2006031002031.html?nav=hcmodule
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