Last edited: December 20, 2004

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

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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