The Other Marriage War
There’s one group that is pursuing legal union—and its kids need the
stability.
The American
Prospect, April 8, 2002
P.O. Box 772, Boston, MA 02102-0772
Email: info@prospect.org
http://www.prospect.org/print/V13/7/graff-e.html
By E. J. Graff
Imagine waking up one morning to the news that because of a recent court
decision, you may no longer be your child’s legal parent. Forget all those
times you’ve read Goodnight Moon, those long nights you spent in a
steam-filled bathroom trying to keep your sick child breathing. In the eyes of
the law, you may suddenly be just a kind stranger. No emergency room,
insurance plan, schoolteacher, tax man, or judge will count you as essential
to your child.
Sound like one of Kafka’s nightmares? It’s what happened to thousands
of California parents last October, when a San Diego court struck down the
procedure by which, for 15 years, lesbian co-mothers—parents who helped to
imagine, create, feed, clothe, and raise a child, but who didn’t give birth—had
legally adopted their children. Many California lawyers’ phones rang nonstop
until the decision was erased from the books while it went up on appeal.
Welcome to the world of lesbian and gay parents, where you can be a parent
one day and not the next; in one state but not another; when you’re straight
but not when you’re gay. At any moment, your heterosexual ex might find a
judge willing to yank the kids after you come out. Or you might hear your
parental fitness debated by strangers—on radio, on TV, and in newspapers—using
language that makes your children wake up at night from dreams that the
government has taken you away.
Yes, the climate for lesbian and gay parents has improved dramatically in
the past 20 years. There can’t be an American left who hasn’t heard about
Heather and her two mommies. And though the children’s book by that name
kicked off an antigay uproar in the early 1990s, by the end of the decade the
mainstream media were covering Melissa Etheridge and Julie Cypher’s two
babies without a blink (except, perhaps, at the unfortunate David Crosby
connection). The lesbian baby boom began in Boston and San Francisco in the
mid-1980s. In both cities, after mainstream doctors refused to offer donor
insemination (DI) services to unmarried women, lesbians started their own
sperm banks and DI clinics. Since then, two-mom families have popped up
everywhere from Maine to Utah, from Alaska to Florida. In smaller numbers, gay
dads have followed, taking in foster children, hiring surrogates, or adopting
(as individuals, if necessary) whenever they could find birth moms, local
authorities, or judges who’d help. And that’s only the latest incarnation
of gay and lesbian parenting. Lesbians and gay men have long become parents
the conventional way: through heterosexual marriage.
But law is lagging badly behind this social transformation. Although many
Prospect readers may know two-mom or two-dad families, they probably do not
know about the daily legal insecurity, the extra level of anxiety and effort,
and the occasional shocking injustices those families face. Society is still
profoundly ambivalent about lesbians and gay men—and about the unfamiliar,
sometimes queasy-making idea of queers raising kids. As a result,
unpredictable legal decisions about lesbian and gay parents too often leave
their children in limbo.
The Kids Are All Right
Is there any reason to worry about how these kids are raised? No. More than
20 studies have been done on about 300 children of lesbians and gay men. Some
compare children of divorced lesbian moms or gay dads with children of
divorced heterosexual moms or dads; others compare two-mom families with
mom-and-pop families that used the same DI clinic. The results are quite
clear: Children of lesbian or gay parents turn out just fine on every
conceivable measure of emotional and social development: attachment,
self-esteem, moral judgment, behavior, intelligence, likability, popularity,
gender identity, family warmth, and all sorts of obscure psychological
concepts. Whatever the scale, children with lesbian or gay parents and
children with heterosexual parents turn out equally well—and grow up to be
heterosexual in the same overwhelming proportions.
Not surprisingly, antigay pundits challenge this conclusion. Brigham Young
University law professor Lynn Wardle and his followers argue that the
population samples in these studies have been exceedingly small, haven’t
been "randomly" chosen, and don’t accurately represent lesbian and
gay parents as a whole. All these charges are accurate, as far as they go. But
the conclusion drawn by Wardle and company—that the results are therefore
meaningless—is not. Here’s the problem: No one can ever get a
"random" sample of lesbians or gay men, much less of lesbian or gay
parents, so long as there’s any stigma to being gay—and any realistic fear
that the children might be taken away. For the most part, researchers have had
to make do with samples of lesbian or gay parents who will consent to being
studied and match them with groups of heterosexual parents. Does that
limitation invalidate these studies? Maybe it would if results varied
dramatically, but because they are remarkably consistent, the vast majority of
social scientists and physicians accept them. Social science deals with
people, not elements on the periodic table. Like doctors, they must always
make informed decisions based on the best and latest evidence.
That’s why organizations such as the American Psychological Association,
the National Association of Social Workers, the American Academy of Child and
Adolescent Psychiatry, and the American Counseling Association have released
statements in support of lesbian and gay parents. This February, for instance,
the American Academy of Pediatrics came out with a report that had been vetted
by an unprecedented number of committees and had taken four years to wend its
way toward the academy’s full approval. Its conclusion: "No data have
pointed to any risk to children as a result of growing up in a family with one
or more gay parents." Nor, the AAP found, is parents’ sexual
orientation an important variable in how kids turn out.
So what is? If basics like food, shelter, clothing, and health care are
covered, what matters to kids is the happiness and satisfaction of the
parents. Are the parents happily mated and content with the way household
responsibilities are shared? Or are they miserable and sniping at each other,
whether together or separated? You can guess which type of household will
produce happier and more confident kids. Harmony helps children; conflict and
disruption hurt. Despite the yammering of the conservative marriage movement,
how households are run matters more than who (read: which sex or sexual
orientation) runs them.
There’s another right-wing line of challenge to these studies: shouting
about statistical blips. Occasionally, intriguing differences do show up
between the children of lesbian moms and those of heterosexual moms. Here,
conservatives want it both ways: They want to throw out the common findings
because of methodological suspicions while making a big deal about onetime
results. But in every case, these variations are differences, not deficits.
For instance, in one study of kids with divorced moms, the lesbians’
daughters were more comfortable than the heterosexual women’s daughters in
"rough-and-tumble" play, more likely to play with trucks and guns—although
the sons were no more likely to play with tea sets or Barbies. More
controversially, a British study found that more of the divorced lesbians’
children said that they had imagined or tried a same-sex romance; but as
adults, they still called themselves straight or gay in the same proportions
as the straight moms’ kids. Is it good, bad, or neutral that lesbians might
raise their children to feel free to try out all sides of themselves in gender
and sexuality? Or are these results too small to be generalized? The answers
depend on your political point of view. And in a pluralist society, that must
be taken as an argument for freedom of choice in child-rearing.
Judge Not
So what do these children need from society? The same thing all children
need: clear and enforceable ties to their parents. Child psychologist Anna
Freud once wrote that children "can handle almost anything better than
instability." Not coincidentally, trying to shore up a family’s
stability is the goal of much marriage-and-family law.
Except if your parents are gay. Think about that shocking red-and-blue
presidential-election map we saw in November 2000. If a map were to be drawn
of the legal situation for lesbian and gay parents, it would look
kaleidoscopic by comparison, with the colors constantly shifting. The answers
to some questions may be predictable by geography. On others, even in the
supposedly liberal states, how well you’re treated depends on your judge.
For instance, did you think that divorced lesbians or gay men, if
reasonably stable, could count on seeing their kids? Think again. Says Kate
Kendell, executive director of the National Center for Lesbian Rights,
"The good news is that more than half the states have good decisional
case law that sexual orientation in and of itself is not a bar to
custody." The bad news is that a lot of states don’t. This February,
Alabama’s supreme court decided 9-0 that children are better off with a
violent father than with a kind and reliable lesbian mom. As chief justice,
Roy Moore (the judge who posted the Decalogue in his courtroom) wrote the
opinion that overruled a lower court that had sent the kids to their mom. Here’s
an excerpt from his opinion:
"The common law designates homosexuality as an inherent evil, and
if a person openly engages in such a practice, that fact alone would render
him or her an unfit parent. Homosexual conduct is, and has been, considered
abhorrent, immoral, detestable, a crime against nature, and a violation of the
laws of nature and of nature’s God."
Even when a state’s antisodomy laws are not so explicitly invoked,
judicial recoil can be obvious. A judge in Mississippi decided that a
19-year-old who left her violent husband and came out as a lesbian can see her
infant only once a week, between 8:00 A.M. and 9:00 A.M. on Sundays at the
local McDonald’s, supervised by the ex.
Things are even iffier for two-mom families than for divorced parents who
come out. Most judges just don’t know what to do with these families.
Adoption laws, written by state legislatures in the late nineteenth century,
cover two situations: a couple adopting an orphan or a remarried parent who
wants legally to link the child to the stepparent. A mother can add a father;
a father can add a mother. But can a mother add another mother? Most judges
say no, with attitudes ranging from uncertainty to outright antagonism; one
Illinois judge, Susan McDunn, went so far as to appoint the Family Research
Council as guardian ad litem for the children. Judges in up to half the states
have allowed what’s called "second-parent adoption," but in only
seven states and the District of Columbia is this a statewide policy.
Elsewhere, you’re playing roulette: In Michigan, for instance, an Ann Arbor
judge might grant one, while a Grand Rapids judge might say no. And advocates
try not to appeal—because of the risk that the appeals court might flatly
rule out second-parent adoptions, as has happened in the Wisconsin supreme
court and in five other states’ appellate courts (with cases in California,
Nebraska, and Pennsylvania now on appeal in their top courts).
No biggie, some people think: Just write a will and some health care
proxies, appoint a guardian, and you’re all set. It’s not that simple. The
biomom better be the breadwinner, because the co-mom won’t be able to list
the child on her taxes or health insurance; nor can she pass on her Social
Security benefits or pension. If the biomom dies, the biological grandparents
can challenge the co-mom’s guardianship and legally kidnap the child. And if
the moms break up, cross your fingers for that child.
Many—one hopes most—divorcing couples put aside their anger to do what’s
best for their children. Not everyone does. We all know how hideous people can
be when fighting over custody: They play dirty, cheat, lie, even kidnap,
always persuading themselves that they’re doing it for the kids. When
lesbian couples have such no-holds-barred breakups, a spiteful biomom can pull
legal rank. If the facts won’t let her eviscerate her ex’s right to
custody or visitation, she may insist that the co-mom was never a parent at
all, but just a babysitter, a visitor, a pretender, a stalker. (Because gay
men don’t give birth, they more often start out on an equal legal footing
and can’t use this trick.) A biomom and her attorney may exploit a judge’s
discomfort with homosexuality or cite the state’s Defense of Marriage Act to
blowtorch any legal link between the co-mom and the child. And if the biomom
wins, it leaves tortuous and cruel case law on the state’s books that can
hurt other lesbian and gay families for decades.
These cases can be heartbreaking. There’s the video of the moms’
wedding, there’s the co-mom’s last name as the child’s middle name,
there’s the Olan Mills picture of the three together—and there’s the
biomom in court saying, "Keep that dyke away from my child." How
gratuitously nasty—and legally dangerous—can it be? After getting a legal
second-parent adoption in Illinois, one couple moved to Florida to take care
of the biomom’s dying mother. There the pair broke up. Florida has the
dubious distinction of hosting the nation’s most draconian ban on adoptions
by lesbians and gay men. And so in court, the biomom is now arguing that
Florida should refuse to recognize her ex’s "foreign" adoption of
the child. If this biomom wins, every other two-mom or two-dad family will
have to think thrice about visiting Key West or Disney World: What if a
Florida emergency room or police station refused to recognize their adoption?
Similar cases are percolating in Nebraska and North Carolina. If these
biomoms win, the map of the United States could become a checkerboard of
states where two-mom and two-dad families don’t dare travel. Can you imagine
having your parenthood dissolve when you hit the interstate? You might never
leave home again.
"This is a level of damage," says Kendell of the National Center
for Lesbian Rights, "that Jerry Falwell and Pat Robertson and Lou Sheldon
and all their ilk can only dream of."
Coherent laws and public policies are desperately needed to help gay and
lesbian parents order their families’ lives. Fortunately, history’s
heading in the right direction. More and more state courts are coming up with
guidelines that refuse to let a biomom shut out her ex, or a co-mom skip out
on child support, if the pair together planned for and reared their child. The
public and the media are sympathetic. Most policy makers are open to
persuasion, understanding that even if they wouldn’t want to be gay
themselves, kids whose parents are gay deserve the most security possible.
Unfortunately, lesbian-gay-bisexual-transgender advocacy organizations can’t
change the legal landscape alone. Both in the courts and in public opinion,
gay folks are too often cast as biased, the mirror image of the radical right.
As a result, liberals and progressives—especially heterosexuals—can make
an enormous difference in the lives of these families.
"Children who are born to or adopted by one member of a same-sex
couple deserve the security of two legally recognized parents," reads the
February report from the American Academy of Pediatrics. Originally written to
be an amicus brief for co-moms or co-dads trying to sway a judge into waving
the parent-making wand, the AAP report did much more: It gave editorial
writers and talk shows across the country an excuse to agree. And aside from The
Washington Times and press-release attacks from the usual suspects, agree
they did, in an astonishing array of news outlets ranging from local radio
shows to USA Today to The Columbus Dispatch.
So what, besides social tolerance, should the forces of good be working
for? Policies and laws that tie these kids firmly to their real, daily
parents. These children need strong statutes that let co-moms and co-dads
adopt—preferably without the intrusive home study, the thousands of dollars
in legal fees, and the reference letters from colleagues and friends that are
now required. They need decisive guidelines saying that an adoption in one
state is an adoption in every state. And they need marriage rights for their
parents. Much of marriage law is designed to help spouses rear families,
letting them make a single shelter from their combined incomes, assets,
benefits, pensions, habits, strengths, weaknesses, and knowledge. Today, when
a heterosexual married couple uses DI, the man is automatically the legal
father (as long as he has consented in writing) without having to adopt; if
any marriage (or even some lesser system of recognition, like civil unions or
registered partnership) were possible, the same could and should be true for
lesbians.
By taking up this banner, liberals and progressives can prove that they
have a practical commitment to real families and real children. As an Ontario
judge wrote in 1995: "When one reflects on the seemingly limitless parade
of neglected, abandoned and abused children who appear before our courts in
protection cases daily, all of whom have been in the care of heterosexual
parents in a ‘traditional’ family structure, the suggestion that it might
not ever be in the best interests of these children to be raised by loving,
caring, and committed parents who might happen to be lesbian or gay, is
nothing short of ludicrous."
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