It's the children, stupid! ...Or why Ryanne, Nolan, and Jacob still don't have two legal parents

The Sixth Circuit Court of Appeals has upheld the bans on same-sex marriage in four states: Michigan, Ohio, Kentucky, and Tennessee.  I hope the Supreme Court hears the case (or the Sixth Circuit, en banc) and reverses, but I have another fish to fry here.

I have been writing about the Michigan Case, DeBoer v. Snyder, since it was hijacked from its original purpose.  April DeBoer and Jayne Rowse wanted to both be recognized as the legal parents of the three children they are raising.  In 2012, they filed a federal court challenge to Michigan's refusal to grant second-parent adoptions.  Second-parent adoption is one of the great legal innovations of the last three decades. When two unmarried persons are raising a child together, second-parent adoption allows both of them to attain the status of legal parents. It is a variation on the more familiar stepparent adoption; the only difference is that second-parent adoption does not require the two parents to be married.  It has been the mechanism under which countless numbers of same-sex couples have been recognized as the legal parents of their children.  And it's been used by others: a gay man and his close, heterosexual, female friend co-parenting a child initially adopted by the woman after the two were unable to conceive through insemination; divorced heterosexual couples who had a foster child they wished to continue raising together whose adoption was not completed while they were married; a mother and grandmother; two sisters; and of course different-sex couples who simply did not want to marry.  (The case Lambda Legal brought that established second-parent adoption in New York had a lesbian couple and an unmarried different-sex couple as their clients). A less common mechanism, derived from second-parent adoption, is third-parent adoption, which leaves a child with three legal parents.  This mechanism has enabled a child raised by a lesbian couple and a known donor to have three legal parents when all those parents agree that their arrangement is best for the child.

Every adoption requires a judge's finding that the adoption is in the child's best interests.  All DeBoer and Rowse wanted was for a judge to examine their family and make that determination.  Although there was no Michigan Supreme Court case on the subject, the state's attorney general had written an opinion that Michigan law did not permit second parent adoption.  Although it might have been better for DeBoer and Rowse to petition the state court for adoption and see their request through the state court system, that is not what they did.  They filed a challenge under the US Constitution in federal district court in Michigan.  In this post,  I document what went wrong when the judge decided the case was really about Michigan's marriage ban.  His reasoning was that if the couple could marry, then they could do stepparent adoptions.

But my beef remains with the couple's lawyers, who allowed the case to be hijacked in that direction without simultaneously demanding a ruling on the separate claim that categorical refusal to grant a second-parent adoption petition when in a child's best interests violated the rights of both the parents and the children.  Here is what the trial judge said in October 2013, in a footnote:

The Court expresses no view on the constitutionality of [the statute that] limits those eligible to adopt children to single persons and married couples regardless of sexual orientation or gender. It does not prohibit same-sex partners from marrying and, thereafter, adopting children. While plaintiffs make a colorable claim that they and their children are, in fact, injured by their ineligibility to petition for joint adoption, such injury is not attributable to defendants' enforcement and defense of [the adoption statute]. Plaintiffs may not jointly adopt their children because they are not married. And plaintiffs may not marry because any legal form of same-sex union in the state of Michigan is prohibited by the [state's ban on same-sex marriage]. Thus, the relief plaintiffs request hinges on the constitutional validity of [that ban].

The case then proceeded to trial on the marriage issue (which I wrote about here and here), culminating in the favorable ruling that the Sixth Circuit reversed yesterday.  The trial judge never did squarely address the second-parent adoption claim on its own, and the lawyers for DeBoer and Rowse did not make him.  They should have.  The judge was factually wrong when he said that: "Plaintiffs may not jointly adopt their children because they are not married."  They could not jointly adopt because Michigan does not allow second-parent adoption.

Consider this.  If the lawyers had maintained the separate claim, they would have argued that even if the marriage ban was upheld the second-parent adoption ban should be struck down.  Since the judge would have still ruled that the marriage ban was unconstitutional, he might have ruled that he did not have to reach the separate question of the denial of the second-parent adoption.  But then the lawyers would have appealed that issue  as a cross-appeal to the state's appeal of the ruling striking down the marriage ban.  THEN, the Sixth Circuit, after reinstating the marriage ban, would have been required to rule on the distinct issue of whether the state may deny a child two legal parents simply because those parents are not married.

I cannot guarantee that the couple would have prevailed in the Sixth Circuit on their adoption claim. But from reading the Sixth Circuit opinion I can guarantee it would have required a completely different analysis, one entirely grounded on the state's reasons for denying the children the emotional and economic well-being that comes when both of their parents have full legal recognition.  Gone would have been the discussion of the tradition of different-sex marriage and the condescending tutorial on the democratic process.  In its place, the court would have had to scrutinize why Michigan allows a single person to adopt but not two single persons, even when they have a track record of years of co-parenting.

The anecdotal evidence is trickling in that judges in some marriage equality states are denying second-parent adoptions and requiring a couple to marry and do a stepparent adoption.  The marriage equality movement told us attaining the right to marry was about giving couples that choice, not making it mandatory.  When a judge makes it mandatory, the judge takes his or her eyes off the children and what is in their best interests.  That's bad for couples who choose not to marry, bad for co-parents who are not romantically intimate partners, and, most of all, bad for their children.  But in this case I fault the LGBT legal groups that let DeBoer v. Snyder become a vehicle for the goal of marriage equality, simultaneously -- and unnecessarily -- sacrificing the one thing the couple wanted from the start...a second-parent adoption.

Posner's support for same-sex couples does not excuse his hostility to single parents...We should call him on his misogyny and racism

The Seventh Circuit moved mighty quickly when it ruled in the same-sex marriages cases last month. A lightning speed eight days after oral argument, the unanimous three-judge panel handed down its ruling in Wolf v. Walker (Wisconsin) and Baskin v. Bogan (Indiana).  Conventional wisdom has it that Judge Posner wrote the opinion in advance.  Numerous commentators lauded Posner's "evolution" on same-sex marriage. When the Supreme Court denied cert in these two cases earlier this month, it left every bit of the opinion standing.

I have been shocked by the virtual silence among marriage equality supporters concerning some of the nefarious reasoning in Posner's opinion.  Now I will admit that Posner goes to lengths to expose the faulty reasoning behind the defense of same-sex marriage bans that opponents proffer nowadays. The argument goes something like this: Limiting marriages to couples who look like they could procreate (or in the case of the elderly, set good examples for younger couples by looking like what those couples will one day look like) encourages marriage for those who procreate accidentally, and those are the couples who need the benefits of marriage to entice them into this most desirable family form.  (Yes, I am being tongue-in-cheek here). Allowing couples to marry who clearly cannot procreate accidentally makes it seem as though there is no connection between marriage and procreation, and this will foster an environment in which fewer heterosexual couples will marry for the sake of the children they might produce.  The state is trying to reduce accidental births outside of marriage, and since same-sex couples can't have such accidental births, there is no need to give them the state conferred benefits of marriage.

There is so much wrong with the reasoning above, and I did get a smile out of Posner's sarcastic response to the state rewarding heterosexual couples who behave badly (irresponsibly creating children) while punishing same-sex couples whose relationships do not result in irresponsible procreation. "Go figure."  That's how he put it.  And had he stopped there all would have been well. (I did also like that he pointed out that the rate of nonmarital births had increased, not decreased, since Indiana enacted its ban on same-sex marriage. It does show how preposterous is the cause and effect nature of the claim made by opponents of marriage equality).

But he didn't. Here is what he said:  Accidental pregnancies produce unwanted children; unwanted children are placed for adoption, and if not adopted wind up in foster care; unwanted children are a major problem for society.  Already I knew I wasn't going to like this.  Accidental pregnancies produce some children who are placed for adoption and many who are not.  "Unwanted" is a loaded term that hides the lived reality of why some women decide to place children for adoption, including the lack of social and financial support for mothers and the stigmatized nature of the paltry sums the state provides poor mothers.  Plus, accidental pregnancy does not equate automatically with unwanted children. (At oral argument, Posner asked the lawyer for Indiana if it wasn't true that children of accidental pregnancies are placed for adoption.  He said it as though that was the norm.  It isn't. I didn't like where he was going, and the opinion was even worse than I imagined.) Plus, healthy children who are placed for adoption at birth are adopted.  They don't wind up in long-term foster care because there is no shortage of parents who want to adopt them.  Some children do wind up in foster care for a long time and are not adopted.  But anyone tackling that problem should be looking first at the lack of support for the families of those children -- well-paying jobs with family-friendly leave policies, educational opportunity, affordable housing, substance abuse treatment.  And they should start by reading Dorothy Roberts's brilliant book, Shattered Bonds, to understand the role racism plays in our foster care crisis. Believe me, that was the farthest thing from Posner's mind....

After positing unmarried mothers as creating the problem, Posner's solution turned dark, and I wish it had outraged more LGBT rights commentators (or any).   Here is how he put it: 'Accidental pregnancies are the major source of unwanted children, and unwanted children are a major problem for society, which is doubtless the reason homosexuals are permitted to adopt in most states—including Indiana and Wisconsin."

So single mothers create the problem,....and same-sex couples are the solution!  It got worse. Quoting data from Gary Gates of the Williams Institute, the best source of data in the country on all things LGBT, Posner wrote that same-sex couples (well, Posner said homosexual, but I won't go there...) were five times as likely as heterosexual couples to be raising an adopted child in Indiana and, throughout the country, were more likely to adopt children from foster care.  So, tying all this back to the issue at hand -- denial of access to marriage for same-sex couples,  Posner concluded, "Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters."

If I were to propose improved prospects for "unintended children," it would be with implementing policies that value all children, and the families they come from.  There is much more in Posner's opinion that shows his contempt for women who bear children without marrying and his strong preference for marriage over nonmarital relationships  (admittedly, and sadly, some LGBT supporters share this view).  And he even indicated that fewer pregnant women will have abortions if they know that married same-sex couples are able to adopt their children. (I did not make this up.)

Should we care about the reasoning Posner used to reach his decision?  Many would say no, that ending the marriage ban is all that matters.  But this reasoning goes to who we are and whose causes we link to our own.  I have written repeatedly about how much I detest the distancing of same-sex couples from single mothers, the repeated assertions that our children will grow up better than theirs.  Posner's reasoning belongs in that category.  Even for those who appreciate the outcome in this case, I wish everyone called the reasoning what it is -- misogynist, racist, divisive, and disrespectful (for starters).  And with no review by the US Supreme Court, it stands forever as the final word in the 7th Circuit.

Regnerus testifies and is cross examined...and the University of Texas Department of Sociology issues disclaimer

THIS I find unusual.  The Sociology Department of the University of Texas has issued a statement that the testimony of Mark Regnerus in the Michigan second-parent adoption/same-sex marriage case does not reflect the views of that Department or of the American Sociological Association.  I can't remember ever seeing anything like that!

As I wrote about last week, the best place to follow the trial is the blog of Michigan attorney Jane Bassett, but I also recommend this Twitter feed from Trea Baldas, which provides short real time updates.  Maybe others are not as transfixed as I am, but what this court decides about Regnerus's testimony is going to have a huge impact on LGBT family litigation going forward.

To me, by his own admission, he is not saying it is worse for children to stay in foster care than to be adopted by a lesbian or gay parent.  He is not saying it is worse for a child to be adopted by a same-sex couple than by a single lesbian or gay parent.  He is not saying that blocking same-sex marriage will keep lesbians and gay men from raising children.  I just cannot see how his testimony helps the state.  He is certainly saying that children do best with their married biological parents.  He doesn't like married heterosexuals using donor eggs or sperm, but he would not prohibit it.  Nor would he categorically prohibit all sorts of other people whose children have so-called less desirable outcomes (e.g., people with less money or education) from adopting children or getting married.

As a legal matter, the significance of Regnerus's testimony depends to some degree on what level of "scrutiny," in Equal Protection terms, the court applies to the state's bans on second-parent adoption and same-sex marriage.  Under the most basic form of rational basis review, the state's argument about what the bans accomplish doesn't have to be very good; it just can't be irrational.  A decade ago, a federal appeals court found that Florida's ban on gay adoption wasn't irrational, but that ban is gone, thanks to a more recent state court ruling finding it irrational indeed.  And it is going to be hard for the state to argue going forward that the US Supreme Court's ruling in Windsor last summer leaves sexual orientation classifications under the barest form of rational basis review.

If you want to stay tuned, just check in a few times a day with the websites above.  And thanks to the writers for making it possible for the rest of us to get these details.

Why the trial in Michigan Federal Court really matters....and how to follow it closely

I wrote last fall about DeBoer v. Snyder, and the trial in the case is upon us.  This case began as a challenge to Michigan's refusal to grant second-parent adoptions, and it has, thanks to a federal court judge who all but insisted, turned into a challenge to Michigan's ban on same-sex marriage.  I criticized the conflation of adoption and marriage in my earlier posts and won't repeat them here.  But the trial began yesterday, and it is time to sit up and take notice.

I suspect many people will see the Michigan case as just one in a string of cases, especially with so many federal court judges striking down same-sex marriage bans.  (A Texas judge did so just today).  But there is a big difference.  The Michigan judge ordered a trial, a factfinding process after which he will rule.  The only other recent case that went to a full trial was the "Prop 8" Perry case in California.  But DeBoer is significantly different from Perry.  The defenders of Prop 8 offered no meaningful expert testimony in support of the ban on same-sex marriage. (They called to the stand David Blankenhorn, who tried and failed, under withering cross examination by David Boies.)

The state of Michigan is going a different route.  It is trying to get the court to rule that children do best when raised by their married, heterosexual, biological parents, and that therefore the state is justified in prohibiting second-parent adoption and same-sex marriage. So far, without holding trials, the recent court rulings against same-sex marriage bans have all found arguments like that in DeBoer unfounded. But DeBoer will involve witnesses and factfinding based on their testimony.

Michigan is calling Mark Regnerus, whose study supposedly showing that children raised by same-sex couples do worse than children of married heterosexuals, was the subject of immense professional criticism two years ago.  Regnerus counted those with a parent who had any same-sex sexual relationship, however fleeting, as raised by gay or lesbian parents, even though very few of the children lived with a parent and a parent's partner for any length of time.  None of those studied had been raised from birth by a same-sex couple.  Look for ACLU attorney Leslie Cooper to do a stunning cross-examination of Regnerus.  (For a preview, check out the criticism of Regnerus in this Lambda Legal brief in an earlier case). Adoption expert David Brodzinsky, a witness for the plaintiffs, has already critiqued the Regnerus study and offered his own opinion that denying parentage to both adoptive parents (as well as marriage) is bad for the children.  Because the children of the plaintiffs were all adopted from the state foster care system, his testimony is especially valuable in this case.

Anyone interested in following this trial has an amazing resource -- the live blogging of attorney Jane Bassett, who practices LGBT family law and elder law in Michigan.  She covered yesterday's full day of trial in 11 updates.  Today was a short day, and she provided 2 updates.  She'll be back at it tomorrow, when the plaintiffs offer LGBT demographer extraordinaire, Gary Gates, as their next witness.  Because Jane Bassett understands the law and the issues in this case so well, I trust her more than the newspaper sources covering the trial.

If the judge insists on striking down Michigan's marriage ban, I sure hope he separately strikes down the ban on second-parent adoption.  I know the plaintiffs are trying to get him to do that, and I commend the plaintiffs, who have always sought dual parentage, not marriage, as their main goal.  I'll be following Jane Bassett's blog every day until the trial ends.