By Dahlia Lithwick
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. And around the country, courts are increasingly beginning to recognize 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 claims that they are inventing a right to same-sex parents: Judges who do the latter are adhering to a bedrock principle of family law.
The Delaware Supreme Court found this week that a gay woman could retain joint custody of triplets she co-parented with their biological mother. That makes Delaware one of a growing number of jurisdictions unwilling to reflexively downgrade involved gay parents to third-party interlopers. According to the 2000 census, 34 percent of female same-sex households and 22 percent of male ones include children. Good data are extremely hard to obtain here, but the Lambda Legal Defense Fund estimates that 6 million to 10 million gay parents are caring for 6 million to 14 million children in this country.
As is the case with much of family law, adoption laws vary widely by state. Most states allow adoption by single parents, including gay parents. Only Florida categorically prohibits gay parents from adopting, although Mississippi, Nebraska, Oklahoma, Utah, and North Dakota do so as a matter of practice. Alabama, Georgia, Kentucky, Tennessee, Ohio, and Missouri are now considering constitutional amendments or laws banning gay adoption. Three states (Arkansas, Nebraska, and Utah) prohibit gay people from even serving as foster parents.
These legislative bans fly in the face of both necessity and truth. There are 119,000 children waiting to be adopted in this country, about half of them racial and ethnic minorities. There are approximately 588,000 children in foster care. Legislators—like a clutch of Ohio Republicans—pushing bans on gay adoption and fostering must thus argue, without empirical evidence, that it's better for these children to languish in state custody, or bounce from foster home to foster home, than be raised by gay parents who want them. And just as there are no data to support the claim that children raised by married gay parents fare worse than children raised by heterosexual parents, there are no data to suggest that foster care is preferable to gay parenting. That's why virtually every serious child welfare entity, including the American Academy of Pediatrics, the American Academy of Family Physicians, the Child Welfare League of America, the National Association of Social Workers, and the American Psychological Association, recognize that gay parents are no worse than heterosexual ones.
Efforts to prevent gay parents from obtaining joint custody over their children crash against the same practical realities. The majority of states, by denying gay partners the right to "second-parent" adoptions or joint custody with a gay partner, effectively enshrine a legal regime in which millions of children have one legal parent and one legal friend-of-the-family. That means, as a practical matter, that millions of children have neither the certainty nor the security of two parents for purposes of health insurance, life insurance, inheritance, child-support payments, emergency medical authorizations, or parental leave, particularly in the event that their parents separate, or their primary parent dies.
To defend the current adoption and custody regimes, then, you need to subordinate the practical and emotional interests of these children to the moral preferences of lawmakers. That is precisely what family law prohibits.
The arguments for locking gay parents out of formal parenting arrangements include the familiar litany of complaints about health, morals, and the sanctity of traditional marriage. But when real family-court judges face real children in real long-term family relationships, those arguments are quickly blunted by real concerns. In this week's Weekly Standard, Sara Butler Nardo, of the Institute for American Values, tries to take just such a whack at the expanding legal notion of parenting. She dismisses "de facto," or "psychological," parenthood—equitable remedies used by judges to preserve relationships between children and their gay parents—as a wacky "new concept" (it's been around for years) invented by reckless judges to "serve adults more than children." Nardo warns that while we are loudly and properly debating the legal change in the word marriage, the legal definition of the word parent is "quietly" changing under our noses.
But where Nardo and social conservatives are dead wrong is just here: If in fact judges around this country are increasingly inclined to recognize the validity of same-sex parenting arrangements, it's not because they are activists, or because they're mangling a long-established tradition of family law to do so. 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 standard remains the polestar for judicial decision-making in both the adoption and custody contexts. And, as it turns out, most children usually have larger and 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 meddlesome adults. The best interest test is a legal standard, and not a fixed rule, precisely because judges must figure out what's best for kids on a fact-specific, case-by-case basis. And while judges can and should be able to make subjective policy decisions about whether two-parent adoptive homes are better than single-parent homes, they also need to be free to decide that in this case it's preferable for little Joey to have a gay adoptive father than none; or to have two legal mommies rather than one. Categorical 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.
A version of this article also appears in the Outlook section of the Sunday Washington Post.
Dahlia Lithwick is a Slate senior editor.