In a new column, I argue that anti-gay marriage policy is pushing gay families to seek alternative protection in family law though untraditional means. These work-arounds, however, are also available to straight couples and may undermine marriage and traditional parental presumptions and family forms in ways that gay marriage would not. Here are are four examples from the column:
Second-parent adoptions. When married couples adopt, both become the legal parents of the child. Traditionally, however, only one member of an unmarried couple could adopt a child. Among other things, this rule has encouraged the couple to get married because it would provide the child with two parents.Gay couples, who can’t marry, must find other ways to protect their children. Starting in the early 1980s, the National Center for Lesbian Rights pioneered the concept of second-parent adoptions by which two unmarried people could both be a child’s legal parents. Over time, the concept has been embraced by courts or by statute in about half the states.
Here’s the kicker. Second-parent adoptions have also become available to unmarried heterosexual couples. Thus, a legal reform intended to compensate for the unavailability of same-sex marriage has been seized by those who can marry but choose not to. It reduces the incentive to marry and means more children will be raised out-of-wedlock.
Triple parenting. Another unconservative consequence of the ban on gay marriage is illustrated by a recent case in Pennsylvania. The case involved a lesbian couple who enlisted a male friend to act as a sperm donor, resulting in the births of two children to one of the women. When the lesbian couple split, the state courts decided that the women should share custody and that the sperm donor should be allowed monthly visits and be ordered to pay child support. Thus, the children would in effect have three parents shuttling them back and forth among three different homes.
Marriage exists in part to clarify legal responsibility for children. If gay couples could marry, as straight couples using sperm donors or surrogate mothers can, they would be more likely to seek exclusive parental rights at the outset (as married straight couples do) because they could adopt as a couple and because of the additional security marriage would give their relationship and their children. Sperm donors and surrogate mothers, for their part, would be more likely to surrender any parental rights since they would be reassured the child would live in a two-parent family fully protected in the law.
Triple-parenting arrangements don’t lead to polygamy, as some conservatives claim. Lesbian mothers aren’t usually keen on marrying sperm donors, after all. But these arrangements do undermine the traditional idea that, when it comes to children, two are parents and more is a crowd.
While gay marriage alone won't eliminate the many scenarios in which multiple adults vie for children, just as marriage hasn't eliminated them for straight couples, it would make them somewhat rarer. The absence of gay marriage is opening the door wider to the very trends conservatives believe are destabilizing to families.
Parental visitation. In Minnesota, the state supreme court recently upheld an order allowing a woman parent-like visitation with the two adopted children she raised with her lesbian partner of 22 years. Because the women weren’t married, only one of them formally adopted the kids. When they split, the legal parent barred her ex from seeing them. If they’d been married, both parents would have been entitled to see the children.
The non-parent sued to get some access to the children based on a Minnesota statute allowing a person "reasonable" visitation if the person lived with the children at least two years. The court ordered that the non-parent be given the right to visit the children on a schedule exactly like what a divorced parent would get (weekends, alternate holidays, long summer vacations) — all without having to pay child support.
The Minnesota decision was correct under state law and was perfectly justified given that the lesbian couple could not marry and that both women raised the children. But it does set a precedent by which an unmarried heterosexual partner could likewise claim full parental visitation rights without accompanying support obligations. Another incentive to marry is eroded.
Adult-adult adoptions. Not all states set age restrictions on adoptions, so in theory an adult could adopt another adult as his “child.” Barred from marriage, that is exactly what some gay couples have done. One partner adopts the other, giving the two adults some degree of the legal protection marriage would have given — like the rights to visit each other in the hospital, to inherit property without taxation, and so on. This is a perversion of traditional adoption law, to say the least, made attractive only because the partners can’t marry. . . .
Many conservatives may conclude in the end that the collateral damage being done to stability and tradition is worth it to keep gay couples from marrying. But before family policy is further inundated, they should at least weigh the unconservative consequences.
Gay marriage would not end all of this, but it would reduce the need to create and seek out these alternatives. Please read the whole column before commenting.
And, to bolster your thesis, there are some other effects, as well, that could hardly be considered "socially conservative." One in particular I ran across myself.
By legislative decree, my contract (as a state employee) requires that my employer (the state) carry health coverage for my ex-wife, as long as she remains in physical custody of at least one of my children. But (also by legislative decree), my employer (the state) is barred from providing non-married partner benefits (straight or gay). Since I'm straight, and don't have any sort of a partner, this part doesn't direclty impact me, but consider the situation our "pro-family" decisions have created:
The state is required to pay for health care and other benefits for an ex-spouse whom I may well not much like anymore, but is barred from providing partner benefits for a colleague of mine, even though the two are still in a committed, long-term relationship (and since the two can't marry, there's of course no possiblilty of spousal benefits.)
So we make divorce easier for straight couples (by eliminating the concern over health care, which was one of the big reasons my ex- and I stayed technically married, while actually separated, for several years), while making marriage impossible, and commitment more challenging, for gay couples. I also wonder (and don't know) how Minnesota's policies play out with non-ex-spouse custodial parents. I haven't looked into whether, for example, if my ex- and I hadn't married, but had children, she would be covered?
The logic behind the requirement of continued insurance benefits was that it was actually a children's welfare issue; the health of the custodial parent being paramount in the welfare of the child. Apparently children of gay couples don't have such concerns (lucky kids!)
Thanks for yet more of your usual well-reasoned and level-headed contributions to this topic.
I think all of those problems can be fixed by strengthening traditional marriage law. It's pretty simple:
1. End second parent adoptions, unless married.
2. End triple parenting.
3. Make parental visitation contingent on actually being a parent
4. End adult-adult adoptions.
I note that based on what you say, it appears as if these outcomes are being produced by the courts, and not by the legislative process. It's yet another reminder that our Robed Masters are all too willing to destroy marriage, and can't be trusted with that much power. Maybe legislatures would pass these kind of laws, but then again maybe they wouldn't.
Every single one of these outcomes should be prevented.
So instead of relying on a social-religious construct to provide for children, you have a well-written business arrangement, with each parent being a "stockholder" in the family (and each child getting shares as they reach a certain age). That way, if one parent or the other wants out of the arrangement, they either have to buy out their shares or find someone to take over their responsibilities.
...and yes, there are huge legal issues that you could drive a truck through, but it takes a lot of the pseudo-morality out of the mix.
Apparently, though, you seem to want to just make life impossible for gay couples. I suppose you could do that, but the whole of the article, and the whole point of these remedies are because gay couples are raising children by the hundreds of thousands. The gay couples are merely trying to get the same protections for their children as married couples do.
If you eliminate all the effects listed above, you won't stop gays from coupling, and you won't stop gays from having and raising children. What you will do is leave the kids unprotected in various ways.
Which, I suppose, is exactly your point.
Apparently, Andrew Sullivan is correct -- gay marriage is actually the conservative solution to all this.
indegayforum is work-safe.
You're right that we can prevent any of those outcomes by changing the law governing adoption, visitation, etc. But the point is that laws are meant to respond to the needs of the governed. When the needs of the governed, in this case gay families, are not met (or are specifically barred from being met), those needs don't disappear and the pressure on the law only increases. So, you can shore up conservative values by putting an airtight seal around the marriage law, but if you fail to take action to meet those real unmet needs of gay families, then expect continued and increasing pressure on other laws, which may evolve into more radical changes and ultimately work to undermine the law that was originally sought to be protected.
From a public policy point of view, I would suggest that two parents, regardless of gender, are usually better than one, esp. as to support. So, why get rid of a second support source for kids?On the one hand I agree - I don't know the specifics of the case that Dale mentioned, but would not be surprised if the sperm donor were just there as a source of child support. As a proponent of male rights, I would suggest that the better solution would be to substitute the second female for the male, if he were willing.
The slippery slope that Dale didn't mention though is polygamy. If you can have more than two legal parents, at least two must be of the same sex, and polygamy fits in there perfectly. Indeed, I would suggest that it is far easier to justify three (or more) parents if they are all living together than in Dale's example, where the male was presumably not, but was likely thrown in for revenue purposes.Not going to fly. In today's world, far too many people have close ties to children, and it is often in their best interests to retain them. Think of grandparents, siblings, step-parents, etc. Indeed, I know well of a situation where the step-parent will likely have been the primary caregiver for a child for more than half its lifetime by the time the kid goes to college. I don't think it realistic to cut off that step-parent if its spouse dies. Tell that to G. Julius Caesar Octavianus (aka Octavian or Caesar Augustus).
Realistically, I don't see the real issue here.
It sounds like what you're saying is that Judges will make radical changes to laws because they don't like the outcomes that occur. That is not something that is best characterized as some kind of unfortunate side effect of a policy (like the side effect of a minimum wage law would be inflation). A judge actively working to undermine the legislature's intent is not a side effect, but a directed, intelligent activity designed entirely to destroy the will of the majority. It is evil.
It's one thing for a legislature to pass a law to "meet the needs of the governed." If legisutures want to create a law that permits adult-adult adoption, or triple parenting, then they're more than welcome. I will oppose those laws and work to defeat them.
But it's entirely another thing for some elitist Judge to declare he doesn't like what happens if the majority does not permit triple parenting via the legislative process, and so he's going to do it on his own from the bench anyway. Judges have no authority to create such a structure, and should be thrown off the bench and penalized for such rampant breaches of the Separation of Powers. But then again, when you're in the business of destroying something so fundamental to human society like marriage, some pathetic cheap new document like the Constitution isn't going to stop you.
The conservative argument must be that marriage is good, that families are a socially positive force in our society. What is destroying marriage? Not gay people. Its the lack of seriousness that marriage is now treated with. Its too easy to get married and (in some states) way too easy to get divorced. Folks like Dan950 would impress me if they put their efforts into ending no-fault divorce.
Gay marriage creates stronger families and reinforces conservative values like monogamy and faithfulness.
The biological fact is: the child is the child of only one of the parents. Marriage creates a strong presumption that the child is the child of both parents, but that presumption could be easily rebutted in the case of SSM. With marriage, we may get some other (small) innovations that would ratify the parent-child relationship and alleviate the need for second parent adoptions and second parent visitation, but marriage in itself is probably not enough.
As for Triple Parenting, I suspect that it is a rarity. But it is hard to see how marriage really changes anything if the "donor" is wanting to continue in a parenting role.
DC has made some very compelling arguments that SSM is a conservative, and needed, change. But this isn't one of them.
That's not what I'm saying. With the increased prevalence of gay families, lots of new issues not contemplatd by the current laws will arise. So, some changes may simply be new uses of vague laws already on the books. Some changes may be the result of judges reconciling conflicts among statutes. Some changes may happen legislatively. Its not a matter of good or evil or liberal or conservative. The law and the courts are constantly presented with new issues created by our evolving culture. The point is that passing a head-in-the-sand law that says "we don't want to legally recognize gay families" doesn't resolve the legal issues faced by gay families. In fact, it creates lots of new legal questions, which may end up with solutions less appealing to conservatives than the compromises that might result if conservatives honestly addressed these issues.
Ha, I thought the same thing when reading about the adult-adult adoption. For those not up on Roman history, Augustus adopted his wife, Livia, giving her rights after his death that she would not have had otherwise.
The more things change, etc.
Yes. Throwing people in jail for making anti-gay comments is similar enough to throwing Christians to the lions.
Of course, the whole point of this is that gay people have nothing better to do that sit around and litigate ways to destroy marriage. And all these judges are in the business of destroying marriage too.
BUT: when you are in the business of hating gay people so much that you are willing to engage in such demogogery, and leave their children unprotected, for no other reason than your own hatred towards them, nothing like the Constitution is going to stop you either.
Memo to my fellow gays: Hey, we've had marriage in Mass and Canada for severl years now. Have we accompllished our goal of destroying marriage there yet? Sheesh -- this is moving too slowly. I want to destroy civilization NOW!
The law should be based the needs of the governed, but on this issue it isn't. The anti-side in the SSM debate may talk about the earthly consequences of gay marriage, but they aren't primarily concerned with them. What concerns them is the possibility that the law, by serving the legal needs of gay citizens, would be condoning, at least implicitly, sin. It doesn't matter if the "conservative" answer here in the reality-based world is allowing SSM. It wouldn't matter if SSM could be proven to reduce the size of government, cow our enemies, reduce crime, domestic violence and drug use, increase church attendance, reduce porn use, reduce taxes and increase volunteerism. It would still be opposed because, to its opponents, the act of a body politic openly condoning sin is a crime, one that condemns all members of that body. Morality is not a matter of act and consequence, it is a matter of sin and redemption.
Hence the peculiar response of many, when asked about homosexuality, that they are not really concerned what people do in privacy. A private sin is to be expected. After all, we are all sinners and it is after the fall. Plus, a private sin may be repented and cleansed.
But if law or policy acknowledges the act without condemning it, a much greater sin is believed to be committed. Those same people who would regret, but not act against, the private sin, will picket against company's with partner benefits and organize against any law or practice that would sanction gay life.
This distinction is the only reason I can think of for the acceptance of "don't ask; don't tell" as a policy. De facto, homosexuals can serve in the military. On the books, however, we have to continue to disapprove of them in the harshest terms. Clearly all the stuff about "but they'll see us in the showers," could not have been the driving force behind opposition to gays in the military.
I would bet that Daniel950 would not be in favor of rounding up and penalizing gays. And yet he would rather broadly rewrite family law, without reference to the actual consequences to families, rather than allow society to recognize the gay ones as familes at all.
The sociological legal fact is that we have no problem making laws and enforcing them to support families in which adults take the role of parents with children not born to them. It only makes sense. Sometimes the biological parents sicken, die, split, go nuts, lose interest or vanish without trace. Society allows other adults to forge a parental relationship with the children involved and, the i's dotted and t's crossed, backs it up with law.
The convenient way of doing this is in the context of marriage. The point here is not whether or not DC has made an ironclad case that this compels us to allow gay marriage. As you say, by itself, it probably doesn't. The point is that it is one of a whole number of excellent reasons why we could adjust our laws to conveniently serve our gay fellow citizens, since many of them would like us to. The proponents of gay marriage ought not to have to prove that it is vital to the continued existence of society ... DC has made a good case that it would be a fine thing to do for a number of reasons. It is the other side that predicts the utter extinction of marriage and social cohesion if this change is made and it is up to them to back up that wholly bogus claim if they can.
The father (aka "donor") was not the third parent. He and the mother were the child's two parents. The court added a third because the three adults agreed that the father was indispensable and should not be forced to relinquish. That's also true in the Pennsylvania case.
So Mr. Carpenter cannot now rely on the desire of two lesbians wishing to marry the father of the children they'd raise. Two women, lesbian or not, could desire advantages that would come with three-way marriage.
If a third adult is supposed to benefitial to the child, both in terms of custody, visitation, and support, then, on what basis might a court deny marital status to a threesome or a larger agreeable group? Rarity has not been a factor in any of the courtcentric elements of the cases Mr. Carpenter has noted.
I haven't. In fact, I've noticed that several religions explicitly endorse SSM, such as Episcopalians, some Prysbeterian churches, Unitarians, both the reformed and conservative Jewish faiths, Metropolitan Community Church, and so on. Not to mention many smaller churches that are not affiliated with larger demoniations.
And in fact, we have quite a few ministers, bishops, priests and so on who also endorse SSM, including even Bishop Desmond Tutu. I would hardly think that they agree that SSM is a repudiation of religion. Finally, Canada and Mass both have quite a few religious adherents, even though SSM is allowed there.
In regards to Mass, though, most people would acknowledge a decline in authority of the catholic church. But that has more to do with their abyssmal handling of their priests' sexual abuse than SSM. So perhaps if you want to revive religious power in Boston, you should be advocating for transparency within the catholic church before you start blaming SSM. It would get you much further.
I'd be curious to know from Daniel and other SSM opponents how they would have handled this situation. Pretend you are the judge, and you really want to uphold the Constitution, instead of shredding it as you claim. What would you have done that would have been legal and the most fair to the child? (Obviously, you don't give a hoot of what's fair for the parents, so I won't even ask -- but give it a shot to prove me wrong).
1. This is not the first time the Catholic Church has had to deal with corruption in its midst. Remember Prof. Martin Luther and his condemnation of indulgences? The track record so far is that they will purge themselves and keep going. I wouldn't dismiss the church just yet.
2. Let me get this straight. First adoption rules were modified to allow more widespread single parent adoption, then to allow single parent adoption to same sex partners. Now there are problems resulting from those changes and you want to know how to fix them. Really?
3. It seems to me that this is a backdoor approach to forcing a societal acceptance of SSM, done in a cart-before-the-horse manner. Shouldn't we, as a society, resolve the issue of SSM or some sort of equivalent before we put children into same sex families?
4. It has been the position of the courts to act in the best interests of the child. What data, studies, or test results do courts rely on that determine it is in the best interests of children to be placed in same sex families? Since SSM is not a societal norm, outside of areas like, say, San Francisco's Castro District, how can it be in a child's best interest to be placed in a same sex family? Now, I've heard the rationalization about it being better than a foster home, but better than is not best interest. I'm asking this in all sincerity. How do the courts justify what is being done?
5. Given societal resistance to extending the definition of 'marriage', which has its basis in religion, to same sex partners, it seems to me that a registered partners union is the better approach (and indeed, to date, it has been the most successful approach in this country). I've long thought that a Constitution that guarantees equal opportunity under the law to all the citizens it governs includes the ability for same sex couples to share the benefits of married heterosexual couples. But 'marriage' takes place in church and a certificate is issued by government; the control is over the certificate, NOT the ceremony.
I don't ask these questions or make these points from any position of bias. I have no problem with homosexuals; they are friends, they are relatives, they have been coworkers. My own personal experience has been that long-term sustained relationships among the homosexual folks I know is the exception and not the rule, with break-ups far exceeding even the static 50% divorce rate hetersexuals have sustained. This does not recommend them to me as a group as potential adoptive parents, and I'd prefer we, as a society, first do no harm. You think these legal situations you've described are a conundrum? Think of what they are for those poor kids caught up in the middle of it all!
You can argue that with changes in marriage law over the last 40 years, marriage is no longer about children, but about a romantic relationship between two people. Paying benefits under Aid to Familiees with Dependent Children to single mothers in the 1960s while denying them to married couples went a long way toward promoting that view. However, if you think that's a good thing, look at the state of marriage among poorer Americans, and look at the state of AFDC. Yet the fact that marriage began to decline prior to SSM, is also why I believe SSM is not the underlying cause, but rather a symptom, of the dysfunction in American marriage.
What SSM has done is to make it impossible to rationally believe in traditional marriage. (That's what everyone's really upset about.) I think evidence for this can be found in the recent Princeton study of marriage patterns. Whereas previously men were willing to marry women with lower incomes, men are now more likely to marry women with comparable incomes (after all, looks, charm and six figures are much more sexy that looks and charm alone). A reasonable consequence of gender neutral marriage, is that each gender will adopt the marriage criteria of the other. The unintended consequence is that people marry within their class. While arguably a "conservative" outcome, I doubt it's one Prof Carpenter would support.
As for the overall effect of the changes to family law, including SSM, I don't believe that marriage will be "utterly" destroyed. Instead, I think that the marriage patterns in the African American community will become the norm for everyone. Marriage is for White People
That's reason enough for me to oppose SSM.
Parting shot on Prof Carpenter's argument: I believe it boils down to, "If you're in a hole, dig faster."
What makes you think I am blaming SSM for the repudiation of religion? It is the people who embrace it who are repudiating religion. When millions of people either support or are neutral towards SSM, that is a body blow to the idea that religion has much effect on social mores. People are thinking for themselves. Legal acceptance of SSM simply indicates that the change has already happened. Acceptance of SSM didn't cause it, it simply highlights it in a very obvious way.
A man who marries a mother does not automatically become the father of her children -- without step-parent adoption. That requires relinquishment (or death) on the part of the man who, with the mother, created the children. The first principle of responsible procreation is that each parent -- both the mother and the father -- is responsible for the children created by their sexual union. Marriage combines biological fatherhood with social fatherhood; fatherhood and motherhood are not segregated within the social institution. Step-parent adoption is properly at home within marriage.
Besides, second parent adoption was available in Minnesota but the second woman (and also the mother, implicitly) did not seek adoption.
SSM is irrelevant to the case. And Mr. Carpenter has conceded that second parent adoption leads to negative trends.
Joint adoption is not justified outside of marriage and is not justified outside of integration of motherhood and fatherhood.
However, if you want to try to justify it on the basis of sex segregation, or on the basis of nullifying fatherhood or motherhood, or on the basis of codification of unethical choices by adults, then, you might also contribute to the triple parenting trend and the abolishment of the rule of two in parenting and in marriage. Or, maybe there is a reasonable case for rgulation of such arrangments as tolerable but not laudable.
More Liberals and Moderates voted for the various state marriage amendments than did Conservatives. Likewise, more Democrats and Independents than Republicans. The opposition is not merely "conservative". It is also liberal and moderate, Democrat and Independent.
There is no natural flow of the negative trends that mr. Carpenter wants to channel. It is artificial and contrived. It is courtcentric because that's the route of least resistance. And it is unjust.
This is a fair point, but I see two weaknesses.
First, the lack of availablity of SSM creates a need and a lobby for the structures that didn't exist before. A smattering of opposite-sex cohabiting couples may have tried to use the structures, but the structures were more cumbersome and risky than just getting married. Fewer people trying to use them means fewer cases which means more slowly developing laws. More people pushing for them makes them less legally risky because the law becomes more developed.
Second, the strongest policy argument against allowing opposite-sex couples to use the law is, "if you want that protection, get married." That argument doesn't work for same sex couples.
Conservatives are pretty much losing the battle of societal acceptance of gay people. Once the societal stigma was mostly lifted, gay people started to form open relationships and to raise children in those relationships. Sometimes the kids were from prior relationships, sometimes from reproductive technology.
But gay families and kids in gay families exist. The conservative approach is to pretend they don't. Conservatives have utterly failed to explain why kids in gay families deserve less protection than kids raised by heterosexual parents.