Gay Parents
One of the hot button issues in the last presidential campaign was gay marriage. The debate about gay marriage seemed to unite a broad segment of the population to cast votes based on “moral values” (at least if exit polls are to be believed for any purpose). The national debate on gay marriage blurs over some of the more complicated issues involved in the rights of gay families. Many Americans are adamant that the institution of Marriage would not survive the inclusion of same sex unions, and in fact, in all of the states where the issue of same-sex marriage was on the ballot (by way of constitutional amendments), voters rallied against gay marriage.
Many of those who oppose gay marriage do so in part because they believe homosexuality to be immoral, and they view the acts that make someone a homosexual to be sinful. Based on this belief, many feel that homosexuals should be denied the rights and protections that heterosexuals enjoy. But not all those who oppose gay marriage oppose extending any legal recognition to gays. The issue of gay marriage is likely to linger in our culture, but based on the groundswell against it, I doubt it will achieve national prominence the way it did in 2004 for the time being.
But restrictions imposed on homosexuals by state and federal laws, and legal challenges will persist, and will likely be a big issue in 2005. For instance, Florida, Utah and Mississippi prohibit gay couples from adopting children. Florida’s ban was recently upheld by a federal circuit court, and the ACLU is pursuing an appeal with the Supreme Court. Many of these legal challenges will be based on Equal Protection claims.
In Arkansas, the state agency in charge of placing children in foster care had a policy prohibiting placing children in homes occupied by a homosexual. The Arkansas chapter of the ACLU filed suit in state court challenging the policy on Equal Protection grounds. However, the trial judge struck down the policy because he found that the state agency had exceeding the scope of its authority by attempting to regulate public morality. Implicit in the judge’s ruling is the thought that “protecting” children from exposure to homosexuals does not “promote the health, safety and welfare of children” which is the agencies scope of authority. As there are many who dispute this proposition, I would expect an appeal.
Link.
The right to parent children has been found to be one of our fundamental constitutional rights by the Supreme Court:
The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.”
Troxel v. Granville 530 U.S. 57 (2000).
This right is not without limitation, and most disputes revolve around the issue of whether the sexual orientation of a parent can have a negative impact on children in their care. This issue can arise in disputes between gays and state agencies that control foster care and aspects of adoptions. It frequently comes up in custody and visitation disputes between biological parents. In Indiana, the courts have determined that homosexuality standing alone without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child. D.H. v. J.H., 418 N.E.2d 286, 293 (Ind.Ct.App. 1981). However, when presented with evidence of a harmful effect on the children, the Indiana courts have upheld restrictions on a parent’s visitation based on that parent’s sexual orientation (Marlow v. Marlow, 702 N.E.2d 733 (Ind.Ct.App. 1998)).
More recently, Indiana Courts have explored the rights of homosexual couples to adopt children. The courts are reading the current adoption statute to permit to unrelated adults to becomes the parents of a child through adoption, thus giving the green light (theoretically) to homosexual couples adopting children together (Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004), Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003)). From K.S.P. came the following:
[O]ur paramount concern should be with the effect of our laws on the reality of children’s lives. It is not the courts that have engendered the diverse composition of today’s families. It is the advancement of reproductive technologies and society’s recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children’s financial support and emotional well-being by developing theories of parenthood, so that “legal strangers” who are de facto parents may be awarded custody or visitation or reached for support. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a “parent” who has been with them from birth.
This year, the Indiana Court of Appeals found that a lesbian had a legal claim for parental rights in a child born to her partner through artificial insemination, despite the lack of a legal or biological link to the child. (In re Parentage of A.B., ___ N.E.2d ___ (Ind.Ct.App. 2004)).
As these issues continue to churn through the courts, they will force legislatures, and ultimately the public, to respond.
