Features

May/ June 2013 Under the Gaydar

How gays won the right to raise children without conservatives even noticing.

By Alison Gash

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.

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.

Alison Gash is an assistant professor of political science at University of Oregon. She is completing a manuscript entitled “Below the Radar: How Silence Can Save Civil Rights,” which will be published in 2014.

Comments

  • smartalek on March 28, 2013 1:16 PM:

    Thank you.
    An excellent article, and most timely. I like to think I'm pretty aware, but most of this was news to me.
    For one thing, I'd had no clue about the earlier cases cited, from the 70s and earlier.
    More importantly, the larger thesis -- that, legally, the ends of advocacy may, in some realms, be more readily and easily obtained by stealth than by lawyering with an eye toward public-relations -- is a new one to me. It's sort of the inverse of the Thurgood Marshall / NAACP approach to the desegregation fights of the 40s-60s.
    The Professor's forthcoming book should be intriguing reading, by this indication.
    Whoever wrote that headline, however, needs to be taken out behind the chemical sheds.

  • Herbal Infusion Bagger on March 28, 2013 3:52 PM:

    I can hear the TheoCons crying after reading this article: "oh noes! Teh ghey have a seeekkkrriit agenda!!"

    Great article. I think the stealth normalization of same-gender parenting also aided the marriage debate - here were couples, raising well-adjusted kids together, but they couldn't get married. Made for human interest stories that are hard for the bigots to oppose.

  • unlingua on March 28, 2013 9:43 PM:

    All the studies that show gays are as good at child rearing compare against straight-reared children both wanted and unwanted by their heterosexual parents.

    Unwanted children perform poorly against wanted children.

    So, if gay parents' children are only as successful as the blend of wanted and unwanted straight-reared children, doesn't that make them less effective at parenting?

  • Lawyer in Florida on March 28, 2013 10:19 PM:

    The Florida prohibition of gay adoption was declared unconstitutional in 2010 (Fla. Dep't of Children & Families v. X.X.G., 45 So. 3d 79) and parental rights of a lesbian couple were recognized by an appellate court in 2011 (T.M.H. v. D.M.T., 79 So. 3d 787). Neither case was appealed to the State Supreme court.

  • philosophical_Ron on March 28, 2013 10:52 PM:

    Let's have a word for the many gay parents back in those days who made various types of contracts with to produce children whose parents would have full rights (unquestioned in any court case) and the knowledge/consent of every one involved that the child would be raised by the gay parent(s).

    The two mothers of my daughter planned for over a year, put an ad in a CA alternative newspaper seeking a father however laying out all their requirements, which my wife saw and decided we should answer. They interviewed us rigorously, I signed several types of documents giving them full legal rights over the child.

    In the event, we did end up sharing visits back and forth every year, our daughter always knew who her father was, and she had "Mama" and "Mommie" at home. They have become our closest "extended family" relationship, the two ladies have remained friends through the end of their relationship (when our daughter was a teen), and our daughter is now doing well at a top university.

    In the case of another friend of ours, her daughter answered an ad of two gay men, who basically paid her top dollar to have their child, knowing it would go to them. Again there are visits back and forth, and their friendship seems to be working.

  • Rich on March 29, 2013 8:41 AM:

    You missed the most obvious reason that these cases have stayed under the radar: custody fights rarely have "angels" among the contesting parties. Moreover, people who are ambivalent or clueless about their own sexuality often get themselves into marriages with less than desirable partners. The spouses who come back after 10 years of no contact are probably not homophobes' dream poster children. The fights over custody also can be ways that couples fight out a sense of betrayal or their own inability to form good relationships. In many of these fights, advocacy groups probably want to keep as a low a profile as possible regardless of who they support. I did custody evaluations in my younger days as a clinician and they were rarely pretty.

    The role of advocacy orgs gets somewhat submerged here. It would be easy to view these as isolated individual cases, when , in fact, there probably has been a strategy here and people trying to fight low profile battles should not assume they have to fight alone or that isolated cases without a strategy really can bring about social change.

  • Pat on March 29, 2013 11:52 AM:

    I think that there's also the aspect that a lot about parenting can't really be stopped by law. Ron's description is really illustrative of this point. Even if lesbians were banned from sperm banks, they could still find a way to get pregnant. The gay parents at my kids' school adopted two of their kids in Indonesia; the third was local, either abused or abandoned. They were fearless about children.

  • Rich on March 29, 2013 12:12 PM:

    The largely permanent shortage of competent foster parents, esp. for special needs kids is something else that's kept this under the radar screen. Child welfare people are not going to endanger a potential population of foster parents and potential adoptive parents.

  • Bose in St. Peter MN on March 29, 2013 1:50 PM:

    Well done, Alison.

    After I came out, and divorce negotiations began in the early 1990s, I was surprised to learn from my attorney exactly what you describe here -- that many prior cases had established firm precedent on sexual orientation having no bearing the what was best for the children.

    Some context worth noting: When we went to trial in 1995, my attorney documented the precedents, and credible evidence, extensively. The judge expressed appreciation for that, and that this was his first exposure to all of it. (And he had been on the family court bench for many years.) So, even as progress was being made, there was still a need to be very well represented and over-documented.

    The dark underbelly of that was deep risk. Some judges were well-known for antipathy toward precedents that established gay and lesbian parents as no different from their straight ex-spouses. It was still possible for things to go very badly, with rulings written to carefully skirt naming orientation as a reason, denying or severely limiting a gay or lesbian parent's life with her/his children post-divorce.

  • ZetteZelle on March 29, 2013 4:44 PM:

    This article reminds me, hauntingly, of a boy I knew in the mid 80s. His parents were divorced, and his mom had custody, but when she came out he moved in with his best friend's family. This was explained to me (by my older sister) as the logical thing for him to do under the circumstances.

    I'm so grateful for where we are now, and still amazed that our society ever felt differently.

  • B-Rob on March 30, 2013 5:11 PM:

    About four years ago, here in Ohio, a GOPer con state senator wrote a proposal that would prohibit "gay" people from adopting. [Aside -- I always wondered what they would do if someone denied being gay, and adopted anyway.] The then Senate President, Republican John Husted, promised the will would never see the light of day. See, he is very conservative, but was also adopted. He opposed the bill because it would just make adoptions harder and result in more kids left in foster care. The bill died around 2010 and was never revived.

  • parker lambert on April 02, 2013 1:25 PM:

    I think you have it backward, Allison. Adoption was a gay rights issue even if it was not presented that way; marriage is not, but is presented as if it is. If you can demonstrate that sexual preference is not relevant to adoption, then I think most people would say go for it. No stealthiness required. But what you call "marriage equality" is not that at all, it's about redefining what marriage is. Why do that? If the issue is equality, the battleground is for wider recognition of domestic partnerships, with rights that "equal" those of married couples. But that's not what it is. It's all about labels and perception, and some of us don't like being bullied around on that point. Hence, the resistance.

  • clarence swinney on April 13, 2013 9:26 AM:

    DOMA
    I do not comprehend Gay Marriage.
    I am 88 and have met only on Gay person.
    Fowl and Fish do not have Gays.
    They mate Female/Male.
    I cannot comprehend me kissing another male no matter my love for him.
    I just do not understand 53% approving Gay Marriage.
    How can church pastors promote it?

  • Jamie on May 10, 2013 7:36 PM:

    @clarence swinney.
    Sorry to tell you that fowl and fish DO have gays. Homosexual behavior in animals have been documented (mostly among mammals and birds, such as giraffes and ducks). Yes, almost all of sexually reproducing animals do have to mate female-male (except parthenogenesis [female reproducing with no male] on the rare occasion), but that does not mean that parenting is only female-male. In fact in the animal kingdom, it's often only the female that does any parenting, so does it follow that men shouldn't be father figures in their children's lives?

    Secondly, your experience should not limit the experience of anyone else. For example, I cannot comprehend smoking a cigarette (no matter how good everyone may tell me it is), but that doesn't mean I can stop someone else from smoking one.

  • bp294 on July 08, 2013 8:53 AM:

    I'm gay and very respectful of your sincere reservations about gay marriage. We are opening a door with very little precedent in human history -- and, I agree, we should be thoroughly forthright about declaring that. Liberals are embracing this idea with one eye shut; and to me that is troubling. But, trust me, after 88 years you have met more than one gay person!