« Law - "Jury is still out on expert witnesses" | Main | Ind. Courts - Camm and Behrman cases continue in the news »
Sunday, March 12, 2006
Law - "Same-sex parenting is a done deal."
"Why Courts Are Adopting Gay Parenting" is the headline to a column by Dahlia Lithwick in today's Washington Post. Some quotes:
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.Around the country, courts are increasingly recognizing that reality, with more generous notions of what "parenting" and "family" mean. Critics are launching the predictable counterattack: deriding gay parenting with the same claims they use to attack gay marriage and dismissing any judge who recognizes such relationships as an unprincipled liberal activist. But there's a crucial legal difference between claims that liberal judges are inventing a right to same-sex marriage and inventing a right to same-sex parents: Judges who do the latter are adhering to a bedrock principle of family law. * * *
If judges are increasingly inclined to recognize the validity of same-sex parenting arrangements, it's not because they are mangling a long-established tradition of family law. Courts that adopt broader visions of "parent" and "family" aren't reading radical new rights into their state constitutions. They are doing precisely what family courts are asked to do: Make a determination about what's in the "best interest of the child." That remains the polestar for judicial decision-making in both the adoption and custody contexts. As it turns out, children usually have more urgent concerns than what their parents do in bed.
The best-interest test reinforces the legal proposition that children are not their parents' chattel; the state has an obligation to privilege their needs, sometimes even over the needs of their own parents and other adults. The test is a not a fixed rule, precisely because judges must figure out what's best for kids on a fact-specific basis. And while judges can and should be able to make subjective decisions about whether two-parent adoptive homes are better than single-parent homes, they also need to be free to decide that it's preferable for little Joey to have a gay adoptive father than none, or to have two legal mommies rather than one.
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.
Posted by Marcia Oddi on March 12, 2006 08:03 PM
Posted to General Law Related