How gays won the right to raise children without conservatives even noticing.
Again, the secret to this progress was that gay parents and couples—who were by now aided by newly-formed gay rights advocacy groups—fought these cases in family court, where judges had wide discretion and public scrutiny was minimal. Aware of the perils of drawing public attention to these cases, advocates from national gay rights groups worked hard to camouflage their efforts. They removed their names from briefs, provided behind-the-scenes support, and avoided appealing losses to appellate courts, out of fear that higher-level court approval would awaken the sleeping giant of public opposition.
Some even developed strategies to educate judges who were likely to hear same sex parenting cases through seminars and bench books. They quietly met with judges to reassure them that their rulings would not be politicized. Says one advocate:
“You have to take steps to keep it under the radar. I make sure to tell these judges that this is not a test case. We are not going to put you on the spot. I appreciate that you are an elected judge and I am not going to do something that will hurt you.”
Eventually, same-sex parenting cases did make their way to higher courts in two states—ironically in the same year, 1993, that gay marriage hit the supreme court docket in Hawaii (the case that launched a nationwide debate). But rather than rally opposition to both issues, conservatives chose to focus their attention only on same sex marriage. Why?
For one, the co-parenting cases received relatively little attention from the mainstream press—again, because they were not being argued as matters of “gay rights.” Also, many pro-family activists also assumed, or at least hoped, that anti-marriage efforts would limit both marriage and parenting progress. They theorized that same-sex marriage bans would, like anti-sodomy statutes, impose a chilling effect on judges. So while conservatives were busy getting the 1996 Defense of Marriage Act through Congress and initiating state level bans on same-sex marriage, gay parents and their advocates continued to quietly amass significant court victories in Delaware , the District of Columbia , Illinois , Indiana , Maryland , Massachusetts , New Jersey , New York , Pennsylvania , and Vermont .
Meanwhile, by the end of 2004, anti-gay rights forces had won measures banning gay marriage in 40 states. Hoping to leverage these gains, pro-family advocates finally turned their attention to parenting. Between 2004 and 2006 the pro-family movement initiated over 35 attempts to limit same-sex parenting. In 2006, alone, 16 states were poised to initiate bans on same sex parenting legislatively or through the ballot process.
But—happily, for gay rights advocates—the anti-gay forces were too late. Despite dire predictions, very few of these anti-same-sex parenting measures went anywhere. Legislation died in committee and proposed initiatives never made it to the ballot. All the while—on the strength of decades of precedents and “facts on the ground”—family, appellate, and state supreme courts continued to grant adoptions to and recognize the parental rights of gay and lesbian parents.
Why did the backlash against same-sex parenting fail? It certainly wasn’t public opinion. The handful of polls from 2006 that questioned participants about both same sex marriage and adoption rights show that average Americans were no more comfortable with gay parenthood than with gay marriage. In fact, they opposed both by well over fifty percent. And if we take their arguments seriously, it is precisely concern about gay parenthood that drives opposition efforts against marriage equality.
Rather, the main problem for conservatives was that they were trying to roll back gay parenting rights that had, in effect, already been granted. This proved a tough sell. The media didn’t much cover the conservative anti-same-sex parenting campaign, and what few stories did run typically featured heartwarming narratives of gay and lesbian couples raising well-adjusted kids. Such families existed in the thousands precisely because the under-the-radar strategy had allowed them to flourish over the previous twenty years. Whereas gay marriage was still an abstraction that opponents could rally the public to prevent, gay families were a reality that the public would have to tear asunder to stop.
Also, by the mid-2000s, social scientists had conducted studies on same-sex families. In general, this research demonstrated that children of same sex couples were not appreciably different from kids raised by straight couples—including their propensity to identify as gay or lesbian. These studies were widely quoted in the media and used to foster support among child welfare experts.
All this made it a tough fight for anti-gay advocates. As an official at Focus on Family, a conservative Christian advocacy group, concedes, the issue was low on the “radar for pro-family conservatives” because of the “confusing rhetoric of same-sex adoption, the media bombarding the public with images of happy gay couples taking in disadvantaged kids” and the argument that “this kind of family is better than no family.” Adds another opponent, “trying to take the kids away it’s a ridiculous battle to fight.”
That doesn’t mean the fight is completely over. Taking a page from the playbook of parenting advocates, opponents of gay parenting have begun engaging at the level of family courts as well. They are now advocating on behalf of gay biological parents who are in custody battles with their estranged gay partners who are not the children’s biological parents. Still, apart from such skirmishes, the right of same sex parents to raise their kids seems well on its way to being secured.
Same-sex parenting advocates weren’t the first to use an under-the-radar strategy to advance their cause, and probably won’t be the last. The Kennedy administration employed low-visibility tactics to both attract black voters during his campaign and encourage voter registration after he was elected. Some disability advocates, in their attempt to secure group housing for their disabled clients, circumvent public notification procedures when looking for appropriate housing and instead procure the property, move the clients in and wait to be discovered. And groups like the Nature Conservancy long ago figured out that instead of engaging in contentious public campaigns to get elected officials to do protect environmentally sensitive parcels of land it is often easier to raise money and quietly buy the land themselves.
History books suggest that our society has made its greatest leaps on the shoulders of high profile campaigns. But change can also be the result of quiet battles that play out in courtrooms, boardrooms and bedrooms all across the country. And it is often these hidden battles that most effectively propel our society forward.
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