More on Adoption

Mary Catelli has a response and a follow-up to my ongoing discussion concerning marriage and parenting for same-sex couples.  I can briefly, and hopefully fairly, summarize her points and questions as follows:

1.  Do I believe that homosexual marriages should occur only in states where same-sex adoptions are legal? Likewise if they became illegal in a state, does that destroy the case for marriage?
2.  If roommates can adopt should they be permitted to marry?
3.  Adoption has been more variable through history then marriage.  Why sholdn't adoption change to conform to our current marriage laws, as opposed to vice-versa?  Why should adoption law be treated with such reverence and marriage law with such contempt?
4.  My only objection to three or more people jointly raising a child and therefore marrying is that the law doesn't permit, but some judge could change the law.
5.  Could (should?) a judge decide not to grant a same-sex couple joint adoption because of the concern for greater conflict and confusion?

My responses...

1.  No and no.  As I've said before this is just one--albeit an important one--reason to support same-sex marriage.  There are many other reasons to support it, as well.

2.  Even if they can't adopt, I think roommates should be permitted to marry.  They already are permitted if the rooommates are opposite-sex and I don't believe we should forbid it solely because of the gender of the roommates.  Whether roommates should marry depends on the circumstance.  One should only enter marriage with the intention and the expectation that it will be permanent.  So if roommates decide to marry they need to understand that they can't be dating other people, or expect to end the marriage when it no longer suits them.  That being said I don't think they should jointly adopt unless they undertake this permanent commitment with all it entails. 

3.  While I agree that adoption has changed significantly through time and place, I believe marriage has as well  (See E.J. Graff's wonderful book, What is Marriage For?)  Personally, I don't see allowing same-sex marriage as a radical change to marriage law.  I believe the radical change has already occurred in making marriage egalitarian.  That is, the changes that have made the rights and responsibilities of a spouse independent of the gender of the spouse are, I believe, unprecedented.  Even when same-sex marriage had been allowed in certain cultures it was a case of one person taking on the rights and responsibilities traditionally assigned to the opposite-sex.  If anyone is aware of egalitarian marriage occurring previously, please let me know.  Once that change has been made the elimination of gender-based entry requirements follows naturally.  That is why I don't put too much stock in the "same-sex marriage is unprecedented" argument.  I don't hold our marriage laws with contempt.  On the contrary I greatly value them.  I just think the entry requirement needs to change for a number of reasons.

That being said, one who wishes to end adoptions by same-sex couples, and who believes such a goal could be achieved, probably would want to oppose same-sex marriage.  I do concede that marriage will probably make it even less likely that we will change the adoption laws in this manner.  I believe that such a reversion in our laws so that we no longer allow same-sex couples to adopt would be a terrible idea.  I think it would be disasterous for children, even worse than denying them the protections of marriage.  It would deny them the protection of a legal parent.  I also don't think it's a likely change.  The judges and legislatures that have allowed for second-parent adoptions have not done so in an attempt to push a "gay agenda".  They have done so because it is in the best interest of the children.   I think more and more states will allow such adoptions.  In short I believe changing marriage will provide greater protection to children, while reverting the adoption laws would provide less protection to children. 

4.  That is not my only objection to three people deciding to jointly raise a child together.  I have a number of problems with this including my objections to polygamy that I have already discussed.  Judges are generally given by the legislature the flexibility and discretion to act in the child's best interests.  I do not think such a decision would ever be in the child's best interests, but yes I understand a judge could see things differently.

5.  As I said, I believe that judges are never required to approve an adoption if they find that it is not in the child's best interests.  So yes, a judge could deny an adoption, but I don't think the fact that the parents are of the same-sex is itself a reason to deny the adoption.  Ms. Catelli said a simple inspection of newspapers would demonstrate that same-sex adoptions would lead to greater confusion and conflict.  I read many newspapers and have seen nothing to this effect.  Custody disputes involving same-sex couples get more press than those from opposite-sex couples for several reasons.  The confusion and conflict I have seen arises when one of the parents was not a legal parent, but a "de facto" parent.  Adoption would reduce such conflict and confusion.  I actually don't recall reading about any custody disputes in cases where the parents jointly adopted the child (although as with opposite-sex couples I'm sure they arise). 

UPDATE: Trey at Daddy, Papa & Me provides some more information on adoption.  Also I wanted to emphasize that many of those opposed to SSM have expressed support for second-parent adoption, including Eve Tushnet.  Maggie Gallagher has also emphasized the protections second-parent adoptions provide.   I think this goes without saying, but just to be sure, I am not implying that Eve or Maggie supports SSM.  They clearly are strongly opposed to it. 

 

Comments

[lucia]

Gosh, doesn't everyone know at least one heterosexual couple involved in an acrymonious custody suit that doesn't make the papers?

I practically live under a rock, and I know of several!