When I wrote about the surprising level of opposition to the legalization of same-sex marriage in France, I mentioned that much of the antagonism there was due to the simultaneous legalization of adoptions by same-sex couples, and that this issue was causing more concern than marriage.
While writing that, I realized that I had no idea how it came to be that adoptions by same-sex couples had become common in the US long before same-sex marriage and seemingly without any controversy whatsoever. I recalled that a decade or so ago, when opposition to same-sex marriage was at a fever-pitch and Ohio was easily passing by referendum a constitutional amendment to ban same-sex marriage, a gay colleague of mine at the university and his partner had adopted two children, as had my daughter’s violin teacher. And nobody seemed to be up in arms about it.
You would have thought that the opposition to same-sex couples adopting would arouse as much if not more opposition than same-sex marriage. After all, marriage is between consenting adults while adoption is not. Furthermore, there is this weird belief that some opponents of gay rights have that gay people are more likely to be pedophiles or worse. So how did it happen that one day you looked around and found that adoption by same-sex couples had become commonplace and that on this particular issue, the US is actually ahead of some European countries that we view as more progressive on LGBT issues?
Alison Gash, an assistant professor of political science at University of Oregon, has a fascinating article titled Under the Gaydar that explains how this came to be. The full article is well worth reading but basically her essay says that same-sex adoption occurred as a result of a deliberate strategy by advocates of not framing the issue as one of gay rights and avoiding high profile cases. Instead, the struggle for gay adoptions took place quietly at a local level.
What happened was that as divorces became more common beginning in the 1950s, and formerly closeted married people started coming out as gay, the question of who got custody of the children of divorces became an issue. In the early days, a parent being gay was sufficient to deny custody. This changed in 1967 when an appellate court in California ruled that the standard used should not be the sexual orientation of the parent but the best interests of the child. This was followed by similar decisions in 1973 in Oregon and 1978 in Washington state. Because these cases were framed in terms of the details of specific cases and not in terms of broad rights of gay people, it did not grab the public’s attention. Furthermore, these cases were decided in local family courts where judges had considerable discretion and the records were sealed and thus kept out of the newspapers.
The next quiet advance was in the 1980s when courts started recognizing that the best interests of the child would also be better served by enabling the partner of the gay biological parent to perform some of the routine everyday tasks that only parents are legally allowed to do, such as picking children up from school, visiting them in hospital, and so on. Thus began the acceptance, again without much headlines or controversy, of gay co-parenting rights. Then gays started adopting so-called ‘unwanted’ children who were hard to place in homes and who, if not for gay adoptive parents, would spend their lives in the unstable world of foster homes. Again, the best interests of the child trumped any sentiment opposing gay people adopting.
National gay rights movements were actively helping gay parents and their partners in these cases to enable adoptions to expand but deliberately kept a low profile and avoided having their names associated with these cases to avoid generating attention that might lead to opposition. Gash says that the anti-gay movement was also not that focused on fighting same-sex adoptions, instead choosing to fight for bans on same-sex marriage in the hope that that would have the incidental effect of chilling same-sex adoptions. This was their major strategic error.
So while conservatives were busy getting the 1996 Defense of Marriage Act through Congress and initiating 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, Indiana, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, and Vermont.
It is only in 2004 that the anti-gay movement shifted its attention to trying to ban same-sex adoptions but by then it was too late. There were too many facts on the ground. Large numbers of children had been growing up in homes with same-sex couples as parents and there were already studies showing that they were doing just fine. It turned out that even though anti-gay sentiment was still strong, taking away a right that had been granted was tough, and that even conservative state legislatures found it hard to get traction on the issue.
All this made it a tough fight for anti-gay advocates. As an official at Focus on Family, a conservative Christian advocacy 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 images of happy gay couples taking in disadvantaged kids” and the argument that “this kind of family is better than no family.” Adds another opponent, “trying to take the kids away…it’s a ridiculous battle to fight.”
So that is how in the US gay adoptions became accepted before same-sex marriage and in fact can be credited with leading the way for acceptance of same-sex marriage.
This is a great story and Gash tells it well. You should really read the whole thing.