A heads-up to those of you still fretting about the alleged evils of gay marriage: The parade has moved on. Try as you may to vote, or legislate your way out of a country that solemnizes such relationships, committed gay couples are already giving birth to, adopting and fostering children. Whether or not same-sex marriage becomes widely legal in America, same-sex parenting is a done deal.
Lithwick's article recounts how courts across the country are increasingly recognizing "more generous notions of what 'parenting' and 'family' mean." While conservative critics attack judges for recognizing parenting rights of gay couples as being judicial activists, Lithwick argues that judges are simply adhering to a bedrock principle of family law"--the best interests of the child.
Most states now approve of gay adoptions Lithwick observes. Only Florida statutorily prohibits gay adoptions, while Mississippi, Nebraska, Oklahoma, Utah and North Dakota do so as a matter of practice. The Christian right is pursuing constitutional bans on gay adoptions in Alabama, Georgia, Kentucky, Tennessee, Ohio and Missouri. Arkansas, Nebraska and Utah prohibit gays from serving as foster parents.
Indiana courts currently allow single and two-parent gay adoptions, and gays are allowed to serve as foster parents. These rights are not granted by statute specifically; rather, the courts have deemed such parenting acceptable when it is in the "best interests of the child." In a case currently pending before the Indiana Court of Appeals, however, Indiana's Attorney General has asked the Court of Appeals to overturn previous decisions upholding two-parent gay adoptions. The natural parents of children cannot be denied custodial rights of their children simply because they are gay Indiana courts have consistently held; there must be evidence that the parent's sexual orientation is having an adverse impact on a child to deny a gay parent custodial rights.
Every major child welfare entity, including the American Academy of Pediatrics, the Child Welfare League and the American Psychological Association all agree that gay parents are no worse than heterosexual parents Lithwick contends. In cases where one parent comes out as being gay after children are born of a marriage, the result is that efforts will be made to deny the gay parent equal parenting rights with the heterosexual parent. Lithwick says:
The majority of states, by denying gay partners the right to "second-parent" adoptions or joint custody with a gay partner, effectively enshrine a legal regime in which millions of children have one legal parent and one legal stranger. That means that millions of children lack the security of two parents for purposes of health insurance, life insurance, inheritance, child support payments, emergency medical authorizations or parental leave, particularly in the event that their parents separate or their primary parent dies.
In order to defend the current adoption and custody regimes, therefore, you need to subordinate the practical and emotional interests of children to the moral preferences of lawmakers. That is precisely what family law prohibits.
The arguments for locking gay parents out of formal parenting arrangements include the familiar litany of complaints about health, morals and the sanctity of traditional marriage. But when real family court judges face real children in real family relationships, those arguments are quickly blunted by real concerns.
Lithwick's entire point boils down to the fact that courts must face the reality of looking at the paramount issue in these cases, which is the best interests of the child. She opines, "Rules rooted in sweeping moral judgments don't generally work in family law for the same reason they don't work for families: Kids love and need the parents they have, not necessarily the parents we love."