How gays won the right to raise children without conservatives even noticing.
No one knows for sure how the Supreme Court will rule on the two high-profile gay marriage cases it is now considering. The betting, however, is that, regardless of the outcome, progress towards marriage equality will persist. A majority of the public now believes gays and lesbians should have the right to wed. Nine states and the District of Columbia have laws on the books conferring such rights. A stampede of Democratic elected officials has announced support for same-sex marriage, and in its recent “autopsy” report the Republican National Committee hinted its members should do the same.
Although progress has been unusually swift, this story of same-sex marriage rights has followed a familiar path, one blazed by women and African Americans in their struggles for equality. Members of an out-group, advocating for their rights, demand a fundamental change in the legal interpretation of the constitution, which causes a series of high-profile court cases, state and federal laws and counter-laws, and all of it accompanied by a broadly-held national conversation that leads to a change in public attitudes, laws and legal interpretations.
But this isn’t the only way that civil rights advance. A few decades ago, openly gay and lesbian Americans did not have the legal right to raise their own biological children, much less adopt. Today, more than 25 states recognize the same legal benefits and responsibilities of parenthood regardless of sexual orientation. It is now routine for gays and lesbians to jointly adopt, to be recognized as co-parents, and to collect child support or demand custody or visitation rights—even without a biological connection to the child in question. All this has happened without the hallmarks of a traditional rights campaign. There were very few high-profile court cases, few legislative battles, and little public debate. In sharp contrast to marriage equality—where between 1993 and 2003 two pro-marriage rulings incited over 35 state bans—parenting litigation has provoked minimal public backlash.
At first blush, this would seem unlikely. Gay marriage, after all, is between consenting adults, whereas gay adoption involves children, so one would think society would be at least as skittish about the latter. Even countries that pioneered marriage equality, such at Denmark, have been slower to extend full parenting rights to same sex couples. And yet, paradoxically, in the United States, the opposite is the case: we’ve had a contentious, two-decade-long national debate about same sex marriage, one that has repeatedly featured in battles for the presidency, but have allowed same-sex couples to quietly begin legally adopting and co-parenting with hardly any national discussion at all. Why the difference?
The answer is that same-sex parenting rights have successfully advanced precisely because the legal wrangling over them has remained largely below the radar—a fact highlighted by Justice Scalia’s confusion about whether California even permits same-sex adoption during Supreme Court hearings on that state’s Proposition 8. Where marriage equality advocates had little choice but to engage in open political battles and bring high profile constitutional court cases on behalf of their fundamental rights, the fight for same-sex parental rights has mostly played out in obscure family courts, with few reporters present, and with advocates consciously delaying or avoiding high court review. This below-the-radar strategy created a foundation of “facts on the ground”—tens of thousands of intact gay and lesbian-headed families with children-well before most conservative activists were even aware the phenomenon existed, making their subsequent efforts to block same-sex parenting an uphill fight.
The legal struggle over same-sex parenting began in the 1950 and 1960s. As divorce laws loosened, a growing number of closeted gays and lesbians came out to their heterosexual spouses, leading to legal disputes over custody and visitation rights over the couples’ children. These cases were handled in local family courts, where records tend to be sealed. Few were ever covered in the newspapers. Fewer still resulted in victories for the gay spouses. Judges typically ruled that simply being homosexual made a parent unfit.
In one such case, in 1967, a lesbian woman named Ellen Doreen Nadler lost custody of her daughter to the child’s heterosexual father. Nadler petitioned the California appellate court, which found that the previous court was wrong to base its decision solely on Nadler’s homosexuality. Instead, the court wrote that the “primary consideration must be given to the welfare of the child.” In a retrial, Nadler still didn’t regain custody of her daughter, but the case set a key precedent: in custody cases, “the best interests of the child,” a legal doctrine dating back to the mid-1800s, and not the sexual orientation of the parent, should be the deciding factor.
That precedent proved decisive in 1973, when an Oregon court ruled in favor of a gay father when the mother—who had not seen her children in over ten years—challenged custody because of the father’s sexual orientation. The court determined that it was not necessarily in the “best interests of the child” to alter the custody arrangement, despite the father’s homosexuality. Similarly, in two companion cases in 1978, the Washington Supreme Court ruled that withdrawing custody from two lesbian mothers who were raising children together from both of their previous marriages, would not serve the children’s best interests. Although the court expressed some trepidation about the mothers’ relationship, it determined that a change in custody would be more harmful.
While groundbreaking in many ways, these unorthodox rulings attracted little public interest, largely because they were focused on the particulars of the cases and not framed in terms of broader homosexual rights. This was in sharp contrast to the budding gay rights movement, which at that time was starting to push for statutory changes in the law. In 1977, for instance, gay rights activists convinced Miami-Dade County to amend its anti-discrimination ordinance to include gays and lesbians. In response, an anti-gay rights coalition, “Save Our Children,” was formed, with country singer and Florida orange juice spokeswoman Anita Bryant as its leader. “As a mother, I know that homosexuals cannot biologically reproduce children,” she proclaimed, “therefore, they must recruit our children.” Yet despite her rhetoric and the group’s name, Bryant and her allies didn’t focus on gay parenting. Instead they went after higher-profile anti-discrimination ordinances that included sexual orientation and, in some instances, tried to remove gay and lesbian teachers from public schools. The Florida legislature did subsequently pass a law barring single gays and lesbians, as well as same-sex couples, from adopting children, but only one other state, New Hampshire, followed suit.
In the 1980s, the same-sex parenting movement continued to move quietly forward. Family courts began to see cases where gay and lesbian couples with children were petitioning for parental rights for the non-biological partner. Because these “other” parents were essentially legal strangers to the children they were raising, they were often barred from engaging in the most routine—and important—parenting functions: picking up their kids at school, visiting them in the hospital, or listing them as dependents on health or life insurance policies. That decade, family or lower courts in Oregon, Alaska, California, and Washington granted co-parent adoptions to same sex couples, with relatively little reaction from gay rights opponents.
Feed the Political AnimalDonate
Washington Monthly depends on donations from readers like you.