How Gays Won the Adoption Battle


Gay marriage has been a culture-war hot button for the past two decades. But what about gay couples adopting children? Why did that never ignite the same level of opposition? In “Under the Gaydar,” Alison Gash explains:

The secret to this progress was that gay parents and couples—who were by now 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 public opposition.

….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 Hawaii (the case that launched a nationwide debate). But rather than rally opposition to both issues, conservatives chose to focus their attention only on same sex marriage. Why?

For one, the co-parenting cases received relatively little 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 marriage and parenting progress. They theorized that same-sex marriage bans would, like anti-sodomy statutes, impose a chilling effect on judges. 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.

This sparks two thoughts. First, the initial focus of gay adoption was limited to biological parents who wanted to retain custody of their children after divorce. There’s an obvious tension here: Should courts be allowed to take children away from their biological parents just because they’re gay? Conservatives, who believe pretty strongly in the rights of biological parents, would be torn. I suspect this limited their desire to fight this battle.

Beyond that, however, I wish Gash had written more about the legislative process. It’s one thing to argue that gay adoption succeeded in court because it mostly proceeded under the radar, but at some point states started affirmatively passing laws making it OK for gay couples to adopt. That began in the 90s, and obviously couldn’t be kept low profile. So how did it succeed, during a period when same-sex marriage was still universally banned? That sounds like an interesting story, and one whose moving parts might be a bit different. I’d like to read “Under the Gaydar, Part II,” please.

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