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:
Here’s a fool-proof plan for spoiling an otherwise-delightful dinner with friends: Talk about the various ways one might build a family.
This I learned recently, after getting into a surprisingly heated exchange with a couple that we count among our very closest friends. I was reminded that everyone has very strong opinions, not only about how they’ve decided to create their own families, but also about how others should build theirs. In the interests of avoiding another round of unpleasantness (and of making my friends fear that every conversation with me could end up as blog-fodder), I won’t go into any specifics about my friends’ views, or their arguments in support. Instead I want to use this opportunity to make and defend a point that might go insufficiently appreciated at times:
Every method of “having” children has its own ethical issues.
Let’s start with the old-fashioned way: Having your own kids through procreation. More than a decade ago, Joy Williams blew apart any thought that simply having one’s own biological kid was a moral good, or even that it was necessarily ethically neutral. While most of her deliciously over-the-top essay took aim at the fertility industry, she didn’t spare those who conceived the ol’ fashioned way. After reminding us that there are too many people in the world, she gets specific about American babies:
The argument that western countries with their wealth and relatively low birth rate do not fuel the population crisis is, of course, fallacious….The US population is growing faster than that of eighteen other industrialized nations and, in terms of energy consumption, when an American couple stops spawning at two babies, it’s the same as an average East Indian couple stopping at sixty-six, or an Ethiopian couple drawing the line at one thousand.
Williams’s snark-attack at those women and couples who choose to go to extraordinary means to conceive recently received a substantial boost from an in-depth series in the New York Times. The issues involved in such reproductive gymnastics are well-known, and the Times reporting shone what I’d consider to be an unflattering light on extreme cases. Sometimes, there are as many as five participants (egg donor, sperm donor, gestational surrogate, adopting couple) in the birth and parenting processes and an unsavory amount of money changing hands. Other cases involve Herculean and medically ill-advised efforts at fertility.
A woman profiled in one of the stories, for example, went through the following: an in vitro procedure that resulted in a miscarriage and revealed a problem (“incompetent cervix”) that made further pregnancies fraught with danger; a second procedure that resulted in twins — one of which died in utero, and the other of which was born at twenty-four weeks (and then remained in the neonatal unit for more than 100 days, so that the hospital bills approached $1 million — all of which was eaten by the woman’s self-insured employer); and then, incredibly, another in vitro procedure that resulted in a healthy birth. Why the last one?
“I didn’t did feel our family was complete yet.”
At this point in reading, I could barely contain my anger. Not once in this story, nor in the next installment in the series, was the word “adoption” used. Yet the question fairly screamed from the page: Why not complete your family by providing a good home to one of the millions of kids, world-wide, who need one?
As regular readers of this blog know, this is the time for full disclosure: David and I are adoptive parents. So obviously I have a bias of my own, and one that I defend. Our kids are local (from Philadelphia), so we don’t have to face the question: Why not adopt a child from your own backyard? Yet one must decide during the adoption process all kinds of questions that don’t otherwise come up: Does race matter to you? What about disability? Are you willing to adopt an older child? And so on…. I won’t get into the particulars of how we answered those questions, but the moral issues they raise should be clear enough.
And then there’s international adoptions, which raise for some additional but related issues: What justifies removing kids from their community of origin? (In a sense, this question can be asked of any adoption.) Would they be better off, in some ways, remaining there? On the other hand, are we simply associating a baby with a “community” that it will never even know? In other words, does it matter where kids are from? And for gay couples, international adoptions may not even be an option unless they lie — which of course raises its own set of questions.
To return to the beginning of this post: The friends with whom we were arguing had the benefit of a particular experience that colors their view of one of these options. Another couple we know had a somewhat-similar experience, but the difference may be in the “somewhat,” as their view of this same option is diametrically opposed.
So maybe we can’t do any better than this aphorism, attributed by a member of this second couple to an unidentified friend:
“People have the babies they need.”
A Japanese man’s recent marriage to a videogame character, Nena, is reported here:
Brian Brown, Executive Director of the National Organization for Marriage (“NOM”), issued a statement approving the union. “We here at NOM believe that marriage is the union of man and woman,” said Brown. “It’s true that the couple can’t procreate, but this marriage, like all marriages between a man and a woman, promotes the naturally complementary nature of the sexes. That nature is revealed even when, through no fault of their own, the couple is incapable of bearing children.”
NOM President Maggie Gallagher agreed, and expressed a concern that gay couples would try to use this marriage as evidence that they, too, should be permitted to wed. “Expect same-sex couples to whine about their “real needs” as flesh and blood people,” she said. “Whatever those needs are, they shouldn’t be allowed to transform marriage from what it’s always been — the union of man and woman. A cyber-woman is still a woman, and we at NOM support laws that bring people, real or virtual, together. Gay marriage tears marriage apart.”
Gallagher also speculated that some who are objecting to the marriage resented the fact that Nena is beautiful. “Those almost impossibly large eyes, that vast smile….Where was I? It all reminds me of how the activist gay community had it in for that poor Carrie Prejean.”
NOM is said to be considering whether to support the couple’s right to adopt children.
A same-sex couple who adopted a boy in New York State were told by a Louisiana official that they couldn’t have the kid’s birth certificate amended to reflect who his legal parents are. (The child had been born in Louisiana.) Unless that happens, though, the child can’t be added to one of the parents’ health insurance plans.
If any judgment of a sister state would seem an easy case for recognition under the “full faith and credit clause,” it would be adoptions. It’s hard to imagine that even a state that itself prohibits same-sex adoptions — a policy itself not attuned to the crying need for placing children in loving, stable homes — would declare itself to have a strong public interest against recognizing another state’s adoption decree. The decree can’t be undone, so the parents are legally ensconced. By refusing further recognition, as here, a state effectively declares itself indifferent to these kids.
Now, scarce federal judicial resources are being consumed as the state continues to defend its non-recognition policy. A lower court has already ruled against Louisiana, and the matter is now before the federal appellate court, which has just heard arguments in the case. Here‘s a good summary from the website Lambda Legal, which is representing the couple.
Again: How is this refusal to amend the birth certificate to reflect a valid adoption in a child’s best interest — even if such refusal were permissible under the U.S. Constitution’s “full faith and credit clause”?
It reminds me of the great extent that an Attorney General in Australia has been willing to go to in order to challenge two transgendered men’s request to amend their birth certificate to reflect their changed gender. According to the AG, the request should only be granted if the men can prove they are no longer fertile as women. Why? The AG had only boilerplate blather in response. I guess there’s some fear of another Thomas Beatie, whose pregnancy stirred the alwayss-incredulous tabloids (and some mainstream media, as well). The Salon article on Beatie (linked above) contains thoughtful analysis of why this pregnancy so discomfitted so many people. The simplest reason: We like our gender boundaries to remain clearly marked out. Beatie, with his masculine identity and appearance seemingly contradicted by his pregnancy, belies such clarity.
But shouldn’t public officials need a better reason for refusing to change a birth certificate in both of these cases? Once the public policy arguments are reduced to “it’s icky,” then where are we? And is this the kind of discretion public officials should get to exercise when it comes to intimate difficult family and personal decisions?
Courts sometimes find themselves in a bind: Stray too far from public opinion (even if constitutional principles seem to compel doing so), and they risk vilification and loss of the public’s confidence on which they, to an extent, depend for legitimacy. But ignore the reality of the litigants before them, and they run the risk of irrelevance.
The breaking news that a Dallas judge has just recognized the right of a same-sex couple to divorce by finding that the state’s ban on same-sex marriages violates the U.S. Constitution’s guarantee of equal protection highlights the tension between the court’s reliance on public good will and the need to solve problems. As I wrote recently, couples at the end of a marriage must divorce in order to effect a clean separation and to avoid issues — like bigamy — that can surface when they find another partner. Yet in the case I posted on, and Indiana judge denied the divorce (because the court can’t dissolve a marriage that doesn’t exist) while expressing frustration at the result the court felt compelled to reach.
Texas District Judge Tena Callahan wanted to give the couple what it needed, so she did. But at what cost? Since Texas has a state constitutional ban on gay marriages, the only way to get jurisdiction over the case is to vault over the state’s ban and declare the law invalid under the federal constitution. So that’s what Judge Callahan did, invoking the U.S. Constitution’s guarantee of equal protection under the laws to get there.
This decision reminded me of a Florida court’s ruling that the state’s ban on gay couple’s adopting children violated the Florida state constitution’s right to equal protection under the law. In both cases, a court saw a problem that needed solving — especially in the adoption case, where allowing the adoption by long-term foster parents was clearly in the children’s best interest. But appellate courts, at a remove from these actual problems, often take a more dispassionate view of the law and the facts.
Judge Callahan has an argument (at least on the merits; I’m trying to find a copy of the decision, if one exists, to analyze the persuasiveness of her opinion),1 but decisions like this risk creating bad precedent — in theory, this case, because grounded in the federal constitution, could go all the way to the Supreme Court. Did Judge Callahan consider this in trying to solve the problem before her? Should she?
- If I do, I will post my analysis. ↩
Judge Vaughn Walker isn’t fooling around. Today, in the case challenging the constitutionality of Proposition 8 (Perry v. Schwarzenegger), he rejected requests by both various LGBT advocacy groups and a pro-Prop 8 group to intervene in the litigation. Law Dork has a typically clear summary of the ruling here. The judge also appears to have set a remarkably early date for trial — January 11, 2010!
Too bad that this truncated timeline won’t give the Proponents of Prop 8 much time to pursue what is surely one of the most quixotic — even counterproductive — discovery efforts I’ve ever seen.
In response to Judge Walker’s order for specifics on what evidence they’re hoping to gather, and what it might prove, they offer these two statements (again, h/t to Chris Geidner at Law Dork — I can’t find this document on-line). Here they are (brace yourself!), followed by my analysis:
We will…develop evidence that homosexuality is not immutable by analyzing marriage and domestic partnership records from California. . . . From the domestic partnership records, we will compile a list of all the individuals in California who have entered a same-sex domestic partnership. We will then cross-reference these names with the marriage records to identify individuals were previously or subsequently married to a member of the opposite sex.
Proposition 8 promotes the natural and mutually beneficial bond between parents and their biological children by encouraging parents to raise their biological children. We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means. We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records). We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.
The first of these is comically absurd, and might tend to prove the opposite of what the Proponents hope. The second is a fascinating mix of the unintelligible and the irrelevant.
As to the first: I have no idea how many same-sex couples now married or in domestic partnerships were once married to members of the opposite-sex, but their “conversion” surely doesn’t prove that sexual orientation is “mutable.” Indeed, given the societal pressure on gays and lesbians to conform to heterosexual norms, including marriage, evidence that some moved from straight to gay relationships only serves to reinforce that self-abnegation and denial are painful and, for some, impossible to sustain. In short, migration in this direction might reinforce that sexual orientation is stronger than even powerful forces in the other direction — immutable, perhaps?1 And am I the only one who finds interesting that the Proponents aren’t offering to find evidence of people moving from gay unions into straight ones? Wouldn’t that at least be more logically relevant? Not if you don’t have any exhibits to produce.
I’m not sure what point the Proponents are trying to make in the second proposed evidentiary expedition. In addition to the possible concerns about privacy that Geidner has raised, there’s the more basic question of what the evidence would show. Same-sex couples, just like single people and members of opposite-sex couples, already have the legal right to use technological assistance to reproduce. Nothing about Proposition 8 affects that right one way or the other. Moreover, if “many are [already] satisfying these desires with the assistance of technology or by other means,” shouldn’t the law step in to help the kids born through such means by recognizing their parents’ relationships? I don’t get it. And what about foster and adopted children? It seems the Proponents are tacitly acknowledging that recognizing the relationships of parents of these kids would make sense. Otherwise, why are they seeking to prove that most same-sex couples want to create their families in a different way?
OK, so maybe facts aren’t their best bet….
- I should say for the record that the whole “mutability” issue is to me a distraction; as the California Supreme Court has stated, sexual orientation, whether mutable or not, is central to one’s identity — and that should be that. ↩
This article will appear in tomorrow’s NY Times Magazine. It describes the loving home of a lesbian couple who’d taken in many foster children, but who found that their efforts to adopt a baby were less charitably viewed by the child’s court-appointed attorneys, the judge hearing the case, and the skittish child welfare department.
In many respects, the couple’s efforts were eerily reminiscent of our difficulties in adopting our twin daughters, with many of the corresponding players expressing just the same ignorance and effective lack of concern about the children’s best interests. Out of concern for our kids’ privacy, there’s a limit to what I’m willing to discuss, but I’m again reminded that when the system’s participants allow themselves the luxury of easy homophobia, it’s often the kids who lose.
The story of this couple isn’t even over. The West Virginia Supreme Court and some good fortune have made their ultimate success in adopting this child likelier, but they have ample reason to continue to worry. Believe me, I know. Spare them and their young child a thought.