Argumentative Research Paper(First draft and final draft)

Under the Gaydar H o w GAYS WON THE RIGHT TO RAISE CHILDREN

WITHOUT CONSERVATIVES EVEN NOTICING.

By Alison Gash

N o one knows for sure how the Supreme Court will rule on the two high-profile gay marriage cases it is now considering. The hetting, however, is that, regard-

less of the outcome, progress toward marriage equality will persist. A majority of the puhlic now believe gays and leshi- ans should have the right to wed. Nine states and the District of Columbia have laws on the hooks conferring such rights. A stampede of Democratic elected of&cials have announced support for same-sex marriage, and in its March "autopsy" re- port the Republican National Committee hinted its members should do the same.

Although progress has been unusually swift, this sto- ry of same-sex marriage rights has followed a familiar path, one blazed by women and African Americans in their strug-

gles for equality. Members of an out-group, advocating for their rights, demand a fundamental change in the legal inter- pretation of the Constitution, which causes a series of high- profile court cases, state and federal laws, and counter-laws, all of it accompanied hy a broadly held national conversa- tion 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 twenty-five states recognize the same legal benefits and responsibilities of parenthood regard- less of sexual orientation. It is now routine for gays and les- bians to jointly adopt, to be recognized as co-parents, and to

Washington Monthly 23

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 cas- es, few legislative battles, and little public debate. In sharp contrast to marriage equality—where between 1993 and 2003 two pro-marriage rulings incited more than thirty-five state bans—parenting litigation has provoked minimal pub- lic backlash.

At first blush, this would seem improbable. Gay mar- riage, after all, is between consenting adults, whereas gay adoption involves children; one would think society would be at least as skittish about the latter as about the former. 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 we've seen the opposite: we've had a contentious, two-decades-long national debate about same-sex marriage—one that has re-

Gay marriage is between consenting adults, whereas

gay adoption involves children; one would think

society would he at least as skittish ahout the latter as ahout the former. And yet

we've seen the opposite. Why?

peatedly featured in battles for the presidency—but have al- lowed 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 suc- cessfully advanced precisely because the legal wrangling over them has remained largely below the radar—a fact high- lighted by Justice Antonin Scalia's confusion about whether California even permits same-sex adoption during Supreme Court hearings on that state's Proposition 8 law. Where mar- riage-equality advocates have 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 ob- scure family courts, vnth few reporters present and with ad- vocates 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 up- hiU fight.

T he legal struggle over same-sex parenting began in the 1950s and '60s. As divorce laws loosened, a growing number of closeted gays and lesbians came out to their

heterosexual spouses, leading to legal disputes about custody and visitation rights with regard to 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 El- len Doreen Nadler lost custody of her daughter to the child's heterosexual father. Nadler petitioned the California appel- late court, which found that the previous court was wrong to base its decision solely on Nadler's homosexuality. Instead, the court wrote, the "primary consideration must be given to the welfare of the chud." In a retrial, Nadler stiU didn't regain cus- tody of her daughter, but the case set a key precedent: in cus- tody cases, "the best interests of the child," a legal doctrine dat- ing back to the mid-i8oos, 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 cus- tody because of the father's sexual orientation. The court de- termined that it was not necessarily in the "best interests of the child" to alter the custody arrangement, despite the fa- ther's homosexuality. Similarly, in two companion cases in 1978, the Washington Supreme Court ruled that withdraw- ing custody from two lesbian mothers who were raising chil- dren 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 harm- ful to the children than maintaining the status quo.

While ground-breaking 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 con- trast 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 Coun- ty to amend its anti-discrimination ordinance to include gays and lesbians. In response, an anti-gay rights coalition called Save Our Children was formed, with country singer and Flor- ida orange juice spokeswoman Anita Bryant as its leader. "As a mother, I know that homosexuals cannot biologically repro- duce 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

24 May/June 2013

Florida legislature did subsequently pass a law barring single gays and lesbians, as well as same-sex couples, from adopt- ing children, but only one otber state. New Hampshire, fol- lowed suit.

In the 1980s, the same-sex parenting movement contin- ued to move quietly forward. Family courts began to see cas- es where gay and lesbian couples with children were petition- ing for parental rights for the non-biological partner. Because these "other" parents were essentially not legally connected to the children they were raising, they were often barred from en- gaging in the most routine—and important—parenting func- tions: picking up their kids at school, visiting them in the hos- pital, or listing them as dependents on health or life insurance policies. During that decade, family or lower courts in Oregon, Alaska, California, and Washington granted co-parent adop- tions 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 then 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 pub- lic opposition.

Some even developed strategies to educate judges who were likely to hear same-sex parenting cases through semi- nars and bench books. They quietly met with judges to reas- sure 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 Ha- waii (the case that launched a nationwide debate). But rather than rally opposition to both issues, conservatives chose to fo- cus their attention only on same-sex marriage. Why?

For one, the co-parenting cases received relatively lit- tle 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 gay marriage and parenting progress. They theorized that same-sex marriage bans would, like anti-sodomy statutes, impose a chilling ef- fect on judges. So while conservatives were busy getting the 1996 Defense of Marriage Act through Congress and initiat- ing 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, In-

diana, 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 forty states. Hoping to leverage these gains, pro-family advocates finally turned their attention to parenting. Between 2004 and 2006 the pro- family movement initiated more than thirty-five attempts to limit same-sex parenting. In 2006 alone, sixteen 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 forc- es were too late. Despite dire predictions, almost none of these measures against same-sex parenting went anywhere. Legisla- tion died in committee, and proposed initiatives never made it to the ballot. All the while—on the strength of decades of prec- edents and facts on the ground—family, appellate, and state supreme courts continued to recognize the parental rights of and grant adoptions to gay and lesbian parents.

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 cases, careful not to awaken the sleeping giant of public opposition.

W hy did the backlash against same-sex parentingfail? It certainly wasn't public opinion. The hand-ful of poUs from 2006 that questioned participants about both same-sex marriage and adoption rights showed that average Americans were no more comfortable with gay parenthood than they were with gay marriage. In fact, they op- posed both by well over 50 percent. And if we take their argu- ments 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 ef- fect, already been granted. This proved a tough sell. The media didn't much cover the conservative campaign against same- sex parenting, and what few stories did run typically featured heartwarming narratives of gay and lesbian couples raising weU-adjusted kids. Such families existed in the thousands pre- cisely because the under-the-radar strategy had allowed them to flourish over the previous twenty years. Whereas gay mar-

Washington Monthly 25

riage was stul 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 niid-2ooos social scientists had conducted studies on same-sex families. In general, this research demon- strated 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 wide- ly quoted in the media and used to foster support among child welfare experts.

All this made it a tough fight for anti-gay rights advocates. As an official at Focus on the Famñy, a conservative Christian ad- vocacy 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 im- ages of happy gay couples taking in disadvantaged kids," and the argument that "this kind of famñy 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 par- ents who are in custody battles with their estranged gay part- ners who are not the chfldren's biological parents. Stul, 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. John F. Kennedy employed low-visibility tac- tics both to attract black voters during his presidential campaign and to encourage voter registration after he was elected. Some disability advocates, in their attempt to secure group housing for their disabled clients, circumvent public notification proce- dures 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 in- stead of engaging in contentious pubUc campaigns to get elected officials to 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 great- est leaps on the shoulders of high-profile campaigns. But change can also be the result of quiet battles that play out in court- rooms, boardrooms, and bedrooms all across the country. And it is often these hidden battles that most effectively propel our society forward. WM

Alison Gash is an assistant professor of poiitical science at the University

of Oregon. She is currently compieting a nrianuscript entitied Below the

Radar: How Silence Can Save Civil Rights, which wiii be pubiished in 2014.

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