Posted by Dale Carpenter:
Some unconservative effects of opposing gay marriage:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1180104830
In a [1]new column, I argue that anti-gay marriage policy is pushing
gay families to seek alternative protection in family law though
untraditional means. These work-arounds, however, are also available
to straight couples and may undermine marriage and traditional
parental presumptions and family forms in ways that gay marriage would
not. Here are are four examples from the column:
Second-parent adoptions. When married couples adopt, both become
the legal parents of the child. Traditionally, however, only one
member of an unmarried couple could adopt a child. Among other
things, this rule has encouraged the couple to get married because
it would provide the child with two parents.
Gay couples, who can�t marry, must find other ways to protect their
children. Starting in the early 1980s, the National Center for
Lesbian Rights pioneered the concept of �second-parent� adoptions
by which two unmarried people could both be a child�s legal
parents. Over time, the concept has been embraced by courts or by
statute in about half the states.
Here�s the kicker. Second-parent adoptions have also become
available to unmarried heterosexual couples. Thus, a legal reform
intended to compensate for the unavailability of same-sex marriage
has been seized by those who can marry but choose not to. It
reduces the incentive to marry and means more children will be
raised out-of-wedlock.
Triple parenting. Another unconservative consequence of the ban on
gay marriage is illustrated by a recent case in Pennsylvania. The
case involved a lesbian couple who enlisted a male friend to act as
a sperm donor, resulting in the births of two children to one of
the women. When the lesbian couple split, the state courts decided
that the women should share custody and that the sperm donor should
be allowed monthly visits and be ordered to pay child support.
Thus, the children would in effect have three parents shuttling
them back and forth among three different homes.
Marriage exists in part to clarify legal responsibility for
children. If gay couples could marry, as straight couples using
sperm donors or surrogate mothers can, they would be more likely to
seek exclusive parental rights at the outset (as married straight
couples do) because they could adopt as a couple and because of the
additional security marriage would give their relationship and
their children. Sperm donors and surrogate mothers, for their part,
would be more likely to surrender any parental rights since they
would be reassured the child would live in a two-parent family
fully protected in the law.
Triple-parenting arrangements don�t lead to polygamy, as some
conservatives claim. Lesbian mothers aren�t usually keen on
marrying sperm donors, after all. But these arrangements do
undermine the traditional idea that, when it comes to children, two
are parents and more is a crowd.
While gay marriage alone won't eliminate the many scenarios in
which multiple adults vie for children, just as marriage hasn't
eliminated them for straight couples, it would make them somewhat
rarer. The absence of gay marriage is opening the door wider to the
very trends conservatives believe are destabilizing to families.
Parental visitation. In Minnesota, the state supreme court recently
upheld an order allowing a woman parent-like visitation with the
two adopted children she raised with her lesbian partner of 22
years. Because the women weren�t married, only one of them formally
adopted the kids. When they split, the legal parent barred her ex
from seeing them. If they�d been married, both parents would have
been entitled to see the children.
The non-parent sued to get some access to the children based on a
Minnesota statute allowing a person "reasonable" visitation if the
person lived with the children at least two years. The court
ordered that the non-parent be given the right to visit the
children on a schedule exactly like what a divorced parent would
get (weekends, alternate holidays, long summer vacations) � all
without having to pay child support.
The Minnesota decision was correct under state law and was
perfectly justified given that the lesbian couple could not marry
and that both women raised the children. But it does set a
precedent by which an unmarried heterosexual partner could likewise
claim full parental visitation rights without accompanying support
obligations. Another incentive to marry is eroded.
Adult-adult adoptions. Not all states set age restrictions on
adoptions, so in theory an adult could adopt another adult as his
�child.� Barred from marriage, that is exactly what some gay
couples have done. One partner adopts the other, giving the two
adults some degree of the legal protection marriage would have
given � like the rights to visit each other in the hospital, to
inherit property without taxation, and so on. This is a perversion
of traditional adoption law, to say the least, made attractive only
because the partners can�t marry. . . .
Many conservatives may conclude in the end that the collateral
damage being done to stability and tradition is worth it to keep
gay couples from marrying. But before family policy is further
inundated, they should at least weigh the unconservative
consequences.
Gay marriage would not end all of this, but it would reduce the need
to create and seek out these alternatives. Please read [2]the whole
column before commenting.
References
1. http://www.indegayforum.com/news/show/31257.html
2. http://www.indegayforum.com/news/show/31257.html
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