In this week’s 365gay column, I plumb a great mystery: Why do most states allow same-sex couples to adopt kids, but not to marry each other? Do we “forget” to keep caring about the best interest of the child?
I spent most of Friday at St. John’s Law School in scenic Jamaica — the one in Queens, New York — participating in yet another symposium on marriage equality. The students and administrative staff did a great job in putting the event together, and the dean and faculty were welcoming and thoughtful speakers and moderators.
Unlike many similar events, though, this one featured quite a number of speakers from the right — far right — side of the spectrum. That the event was called Legal, Secular, and Religious Perspectives on Marriage Equality/Marriage Protection/Same-Sex Marriage was in itself telling. Let’s make sure every perspective is represented even if doing so requires a tongue-tying title. (Even that wasn’t enough for the angry Jane Adolphe of Ave Maria Law School though, who opined that same-sex marriage should be placed in ironic quotes since it “can’t exist.”)
Balance is good. But I always find odd and more than a little off-putting that most of the anger in these debates comes from the right — you know, the side without the immediate personal stake. As fellow panelist Courtney Joslin told me during a break, it had “been a long time” since she’d been around so many people who thought that she was worth less than they were. And they’re not shy about that sentiment.
In the first of what will likely be a series of posts on the conference, I’d like to focus on the very offensive scattershot of arguments spewed forth by Penn law professor Amy Wax. She’s better known for her insidiously racist book Race, Wrongs and Remedies,1 in which she cheerily relieves government of the obligation to do much of anything about the effects of the centuries-long political and social subordination of African-Americans. She also suggests that efforts to improve their lot might have limited effect even with the sort of good ol’ self-help she prescribes, because (citing IQ tests) “blacks have lower cognitive ability than whites or Asians.” Continuing in this essentializing mode, she then writes that “[a]t this point it is not known whether different groups are equally endowed with all the abilities that make for success in modern technological societies.”
Biology is (mostly) all that matters and there’s no use trying to do much about it. This is the underpinning of Wax’s simplistic world view, and it suffused her presentation on Friday in which she savaged the marriage equality movement. In a bizarre and undertheorized version of the natural law argument, she seemed to ground her opposition in an idiosyncratic version of the procreation argument: Gay or lesbian couples can’t procreate without outside assistance (I wonder what her response would be to a change in that fact), and since biology matters, well, QED.
That view was centrally on display in Wax’s neo-eugenic view of families, which exist in a “hierarchy,” with opposite-sex couples with their own bio children ensconced permanently at the top of the pyramid. Yes, she said, she’d be “somewhat disappointed” if one of her three kids turned out to be gay because that would mean they wouldn’t be able to produce their own biological children.
When I suggested, during Q&A, that it might turn out that having a gay offspring who adopted a child might turn out to be a gift rather than a “disappointment,” Wax began her response by acknowledging the heroism of adoptive parents, but then added the non-responsive and obvious point that an adoption also involved a loss at the other end of the adoptive pipeline — the birth parents. Well, duh. That doesn’t explain why her kid’s hypothetical act of heroism wouldn’t take him or her out of the disappointment category. Based on her worldview, I’d suggest that the intractable problem is that the adoptive kid — who might, after all, not have the same cognitive ability as a mini-Wax — wasn’t as good as a bio offspring would have been. (Adoption, she said, was “second best.”) “I stand by what I said,” she offered, without further elaboration.
Wax also decried the constitutionalization of the marriage issue, stated that sexual orientation classifications were no different from discriminations based on looks or intelligence, and accused the other side of being interested only in rights and not in the normative meaning of marriage. Oh, and she also said that “gays hate the polygamy analogy,” a comparison she finds persuasive.
I have neither time nor stomach for addressing these latter points here, but may do so in a subsequent post.
For now, let me end with this: Like Maggie Gallagher, Wax ends up doing marriage equality a favor. Sitting next to me during the jaw-dropping presentation was an attorney who told me that, because of her Catholicism, she was “struggling” with the idea that same-sex couples might be allowed to marry. (She was unequivocally in favor of civil unions.) She was there to listen and to learn. But as she listened to Wax’s uncharitable presentation, she became increasingly agitated. The part about adopted kids really offended her.
Yesterday, this thoughtful and undecided woman — and, I’d guess, many others in the audience — moved a step closer toward the pro-equality camp. The bigotry she was hearing had made her realize the need to protect and strengthen GLBT families — families that exhibit the very humanity that Wax denigrates.
- This is the correct title. I had originally misnamed the book “Rights, Wrongs, and Remedies”. Professor Wax called the error to my attention and was very gracious in doing so. ↩
The Manchester Union-Leader has long positioned itself on the far right of American journalism. Nonetheless, I was startled to read this statement from the paper’s publisher, Joseph W. McQuaid:
This newspaper has never published wedding or engagement announcements from homosexual couples. It would be hypocritical of us to do so, given our belief that marriage is and needs to remain a social and civil structure between men and women, and our opposition to the recent state law legalizing gay marriage.
That law was not subject to public referendum and the governor (John Lynch) who signed it was elected after telling voters that he was opposed to gay marriage. Indeed, in no state where the public has been allowed a direct vote on the subject has gay marriage prevailed.
We are not “anti-gay.” We are for marriage remaining the important man-woman institution it has always been.
While the law sanctions gay marriage, it neither demands that churches perform them or that our First Amendment right to choose what we print be suspended. In accordance with that right, we continue our longstanding policy of printing letters to the editor from New Hampshire citizens, whether or not they agree with us.”
McQuaid is of course correct about the paper’s First Amendment rights, and it doesn’t appear that the state’s anti-discrimination law applies here. (He needs a quick refresher on representative democracy, though.) But why is he doing this? Is he concerned about losing subscribers if the Union Leader dared publish wedding announcements for same-sex couples? Does the law so offend his sense of justice and the natural order of things that he’s willing to take this drastic step? Some combination of the two?
I don’t know, and I really don’t care. What I do know is that McQuaid’s grown offspring should be concerned about the man they’re allowing to spend time with their kids. In this piece of home-spun treacle, McQuaid acts as though he’s never spent time with kids before. Maybe he hasn’t (that’s what wives are for, perhaps), and his grandsons — who will grow up in a world where LGBT folks are increasingly recognized as citizens and as members of the human community — are ill-served by spending much time with such a homophobe. (Aside: the protesting statement that the paper isn’t “‘anti-gay,'” with the term itself enclosed in ironic quotes, suggests that McQuaid and his paper think there’s no such thing as a homophobe.)
[Update: I commented on McQuaid’s piece this morning, but the paper didn’t run it, even though it complies with all of their guidelines. The publisher, despite his comments to the contrary in the piece I referenced, apparently isn’t interested in publishing critical comments.]
At least this position should provide comfort to people like Amy Wax. Participating in a same-sex marriage debate on the Federalist Society’s webpage, the Penn law professor ended her list of objections by writing:
Finally (and this is in some ways the most important concern for me, as a parent), legalizing homosexual marriage will of course create pressure to “normalize” those relationships in all contexts. (emphasis added)
Don’t worry, Prof. Wax. McQuaid and his entire paper have resisted. You can, too! While you’re doing so, please explain — to your kids, “as a parent” — why my relationship and family, which includes twin daughters adopted from right here in Philadelphia, is less worthy of respect and legal recognition than yours.
I’m tired of this, and it’s well past time to call these apparently moderate conservatives on the connection between their position and the horrendous treatment of LGBT youth. After David and I watched Obama’s effective anti-gay bullying video, he immediately asked the obvious, rhetorical question:
Does this mean we can get married now?
No. No, it doesn’t. It doesn’t mean that the President supports marriage equality, either. He continues to oppose it.
There’s a danger in drawing a clear, straight line from opposition to equality in, say, the military or marriage contexts and the enabling of bullying against our kids. But it’s equally simplistic to pretend that the cultural and legal background in which kids grow up doesn’t have any effect on how we — adults and children alike — treat each other, either. (In this piece, Evan Wolfson eviscerates Maggie Gallagher for her willful refusal to connect any of these dots.)
I’m going to close with (of all people) Sarah Silverman, in an effective primal scream against the anti-gay forces:
Very likely. In an “extra” piece just published over at 365gay, I analyze and comment on a ruling Wednesday by the Florida appellate court that struck down the state’s absurd ban on adoption by gay and lesbian parents. I even offer a brief comment on my personal experience with the adoption bureaucracy in Philly.
Now word comes in that the state is unlikely to appeal. If it doesn’t this is over unless another state appellate court some day comes to a contrary conclusion — not likely. And in any event, the adoptive parents in this case can now know the peace they deserve.
After this week’s DADT debacle in DC, I needed a happy ending.
In today’s column on 365gay, I look at how LGBT rights are advanced. It seems to me that this happens in a kind of logical way — except when it comes to marriage and adoption, with adoption rights generally allowed gay and lesbian individuals and couples even before the right to marry is granted.
Why? Read the piece and find out (or at least get some reasons why this might be so).
Some good news is coming in about the Labor Department’s imminent announcement of new regulations that allow workers to take (unpaid) leave in order to care for their children.
Here’s the important language from the Family and Medical Leave Act:
§ 2612. Leave requirement
(a) In general.
(1) Entitlement to leave. [A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
Apparently, the new regulations will interpret “son” and “daughter” broadly enough to cover those cared for by those who “act as” parents, even in the absence of legal or blood ties to the child. This interpretation, of course, will benefit not only non-bio, non-adoptive LGBT parents, but all similarly “non-traditional” (whatever that means) parents. Like the Obama Administration’s proposed new rules on hospital visitation, these changes will benefit not only the LGBT community. Smart politics there.
But the story has been misreported (by the AP) as allowing LGBT workers to stay home to care for their partners. That can’t be done under this law, which the Labor Department has no authority to countermand.
The Labor Department can probably expand the definition of “son” or “daughter” in this way, but can’t do so with “spouse” — because of the Goddamned Defense of Marriage Act.
Creative interpretation of existing law can only get you so far. This initiative, while commendable, only underscores that DOMA — a law that the Obama Administration continues to defend in court and has done almost nothing to work toward repeal — must be repealed.
Bryan Caplan, in a laudable effort to sell more of his upcoming book, “Selfish Reasons to Have More Kids,” has asked readers of his blog whether he should keep this paragraph in, or take it out:
I confess that I take anti-cloning arguments personally. Not only do they insult the identical twin sons I already have; they insult a son I hope I live to meet. Yes, I wish to clone myself and raise the baby as my son. Seriously. I want to experience the sublime bond I’m sure we’d share. I’m confident that he’d be delighted, too, because I would love to be raised by me. I’m not pushing others to clone themselves. I’m not asking anyone else to pay for my dream. I just want government to leave me and the cloning business alone. Is that too much to ask?
First let’s stipulate that Caplan is of course going to leave this paragraph in the book; it’s provocative, and now that he’s already said it, removing it would only deprive him of sales. Asking the question is a very clever sort of pre-publication publicity. For that, I guess he deserves props.
But what about the underlying question he raises? You can find a range of whimsical, serious, thoughtful, scientific (or pseudo-sciency) and downright batty comments both on Caplan’s site and here. If you have some time to explore the cool question Caplan has raised, scroll through the many postings.
Here’s another take on the proposal: On its face, it seems quite consistent with the problem that the title of the book itself raises: “Selfish Reasons to Have More Kids.” Assuming that he’s talking about “having” biological as opposed to adopted kids, then his proposal is just the reductio ad absurdum of the selfishness that, let’s face it, is behind every decision to have children — not just “more kids,” but any kids. Given that there are countless thousands of neglected, abandoned, abused and orphaned children in need of a home, then should those who can afford adoption seriously consider it? In addition to helping the kids, you also help the planet by caring for an existing child rather than creating a resource-hungry new one.
Put down those cudgels you’re now aiming at my head! People do all kinds of things for selfish reasons — some even argue, tautologically, that all of our actions (even the ones that look altruistic) — and this seems like a pretty defensible one for spiritual, emotional and practical reasons (for most opposite-sex couples, it’s just easier to have procreative sex than to adopt). So is this cloning idea any worse, any more selfish?
Given current science, surely yes. Even if it were possible to create a clone right now, it will be a long time — if it ever happens — before the process will reliably produce healthy, “whole” human beings. Remember that even the well-resourced Dr. Evil had no luck, as his clone was a tiny biter. But let’s assume that Caplan is engaging in a thought experiment rather than a realistic wish for the near future. What then?
Canny marketing ploy aside, Caplan should leave his paragraph in, on the chance that it will actually spur some thoughtful debate on the issue of cloning. As some of the commenters have noted, so far the principal objection seems to be that it’s “icky”; not a reason that gives me great comfort. Given the therapeutic promise of cloning and the religious and ethical issues the practice increasingly raises, it seems that we should be engaging in spirited national debate. So far, most of that debate is taking place in academic circles only.
I have one more observation. As an adoptive parent, it’s clear to me that your kids are your kids, whatever their family of biological origin. And they’ll delight, confound, and surprise you every day. At bottom, Caplan’s wish seems to be to remove much of that mystery by creating himself all over again. But it won’t work, because no amount of genetic engineering can counter Walt Whitman’s profound observation:
As you’ve doubtless heard, an Arkansas state judge just struck down the 2008 ballot initiative that purports to prohibit all unmarried, cohabitating couples from fostering or adopting children. The short ruling is confusing to non-lawyers, because the judge held that the measure passes federal constitutional scrutiny, but is invalid under the state constitution. Judge Piazza simply states that the case involves no fundamental, federal constitutional right as though that proposition were clearly decided, but it’s not. One might say that the U.S. Supreme Court decisions declaring private family matters including child-rearing to be fundamental rights would cover this situation, but Piazza avoids the issue.
Then, inexplicably, he reanimates “privacy,” gives it great weight under state law, and therefore holds that a more searching scrutiny is needed under the Arkansas Constitution. Under that standard, the legislation fails: there’s no compelling government interest in the exclusion.
But here’s the payoff: After first noting that the ballot measure was initiated after the Arkansas Supreme Court struck down an administrative decision barring gay parents from foster parenting, Judge Piazza stated plainly that the Act was clearly targeted at gay couples, who don’t have the same option of marrying as straight ones. Then he says:
“[I]t is especially troubling that one politically unpopular group has been specifically targeted for exclusion by the Act….Due Process and Equal Protection are not hollow words without substance.”
None of what Judge Piazza said really matters, though. The case will be appealed, certainly to the Arkansas Supreme Court (which will likely agree with the lower court), and then, depending on the vitality of the federal claim, possibly even to the U.S. Supreme Court.
Stop me if you’ve heard this one before: A man walks into a government office (Social Security, in this case) seeking to have his adopted daughters’ new names recorded, and their social security numbers changed. Since the process itself was fairly smooth, this wouldn’t be anything to write about. But because the man in question had adopted the kids with his same-sex partner, he wasn’t about to get out of there without the requisite reminder of “the erasure of [his] existence,” to quote a great snippet from the Canadian Supreme Court.
Even though joint adoption by a same-sex couple is now permitted in many states, the federal government’s form is deaf to this development: The spaces for parents include one for “mother” and one for “father.” So the federal employee, seemingly a bit embarrassed, pointed out the obvious: one of these men would have to be listed as “mother.” He suggested breaking the gender tie by counting the visual evidence in front of him: That man would be father, while the invisible one would be “mother.”
How do I know all this? To paraphrase Bart Simpson, “I was that man.” And while I professed indifference as to who would get to play mommy, I didn’t exactly put up a fuss when I was deemed “daddy.” (This internal reaction could itself kick off a whole separate entry, I know. Of course the right move would have been to have insisted on being “mommy,” but the guy was trying to be accommodating and I didn’t want to make him uncomfortable. How’s that for rationalization?) I fulminated uselessly about how it’s time for a new form, the employee dutifully agreed, and I was out of there.
Really, how hard would it be for a form to have two boxes for “Parent 1” and “Parent 2,” with each containing a choice of two boxes (roughly one for each gender) to be checked? Where’s the downside to this? It would be simple, easy to understand, and hard to argue with….
Except by zealous bureaucrats and their private-sector cognates whose central mission, it seems, is to decry every single move towards recognition of the reality of people’s lives. And there’s always the chance that every little bit of publicly sanctioned second-class citizenship contributes to keeping the closet chockful. I guess it was too much to hope that the Bush Administration would create a new form in its waning days, as it was too busy making other, more destructive changes – perhaps thinking that the economic meltdown would distract attention.
President Obama, I have a very small but symbolically important request that shouldn’t take much of your time….
This post was originally published on January 9, 2009.
In my previous post, I wrote cheerily about developments in DC and Maryland. Meanwhile, here in Florida matters are considerably less cheery. I’m down here with the kids for a short vacation. Right now, they’re at the zoo with my parents, while I’m wrapped in ice after apparently rupturing a muscle this morning on the tennis court– which caused much full-throated gloating among the seniors: “See? It can happen at any age!” Last night, I became the last one on my block to finally see Avatar (3D, of course)1 Afterwards, I ventured to a nearby gay bar here in Melbourne, there to see, first-hand, the effects of second-class citizenship.
Florida’s laws are among the most gay-hating in the US: No adoption (although this law is under review in the state courts), no employment protection, and an especially broad constitutional amendment against any type of relationship-recognition for gay couples. But what do you expect in a state so backward that it’s among only three that don’t require booster seats for pre-schoolers? Shoulder straps around the neck will do nicely, thanks!
And the kids might be smoking in those unboostered backseats, too. The choking plumes of smoke that almost bowled me over as I entered “The Cold Keg” reminded me of the state’s legislative foot-dragging in yet another area. I had walked in on some kind of poker night, with two oblong tables peopled by the dysfunctional gay and lesbian version of my parents’ sex-segregated poker nights. I could say a great deal about this sad lot, but one example will do: a forty-something lesbian in a Metallica tee shirt, with a hairstyle that made the mullet seem a high-fashion statement. Other than that, the bar seemed not to have sensed the passage of time, with depressing wood walls, a few sorry, hanging lights, and no real sense of decor.
At least the jukebox was state of the art. When the second-form Lady Gaga hit “Bad Romance” issued forth, the patrons joined in song. (Wouldn’t “Poker Face” have been the more obvious choice, btw?) OK: Some things, it seems, are Gay Universals. When the Lady Parade then continued with the inexplicable country sensation Lady Antebellum, I realized that it’s now “all lady, all the time.” I was half-expecting “Lady Marmalade” to follow.2 So maybe this blog needs a new name (see title of post).
As I neared the bottom of my first and only drink, the bartender approached me and asked the usual, friendly questions that the job demands. When I told him that I was in Florida with my kids, the issue turned to adoption. He reminded me that gay adoptions were illegal in the (No) Sunshine (for Gays) State, and then related a conversation he’d had with family members, where he’d defended himself by saying: “I’m gay but I’m not a pedophile.”
Yikes! I don’t know any gay person who’d feel the need to add the qualifying part of that sentence, which somehow suggests that the listener (and the speaker) might have reason to think that gays are pedophiles. But I don’t know many gays in out-of-the-way places in such homophobic states, either. There isn’t one linear gay rights movement, and last night’s visit was a depressing reminder that in some places full dignity and equality are far off.
But even here, there are glimmers of hope. On the otherwise dismal bulletin board, there was a neatly typed request for donations made by the local high school’s Gay Straight Alliance. (Yes, I did wonder whether the lack of a hyphen between gay and straight was simply poor grammar or a more disturbing distancing between the gays and their not-quite-comfortable straight allies.) Perhaps even in the remotest areas of the cruelest states, better things are only a generation away.
- What a visually stunning film! The plot was OK, if derivative of Pocahontas, until the final chapter which culminated in a tiresome Marine general, encased in a giant robot suit, facing off against the gone-native protagonist, in a battle that for some reason reminded me of Cameron Hodge’s last-stand from an old X-Men comics plot. ↩
- “Hey lady!” “What?” “What lady?” That lady?” No!” — Funplex, the B-52’s. ↩