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Monthly Archives: September 2016

Inconsistency, Marriage Equality, and Legal Change by Stealth

Cynthia Godsoe, Adopting the Gay Family, 90 Tul. L. Rev. 311 (2015).

Obergefell v. Hodges and the cases that preceded it present a perplexing paradox. On the one hand, opponents of marriage equality vigorously argued that marriage should be limited to opposite-sex couples in the interest of children, as traditional marital families offered the optimal setting for childrearing. On the other hand, most of the opponents’ home states placed foster children with LGBTQ foster parents and allowed LGBTQ individuals to adopt children. On the surface, these conflicting impulses might simply have resulted from the confusion of multiple actors and advocates at different levels of government. In the insightful hands of Cynthia Godsoe, however, these contradictions disrupt traditional narratives of marriage equality and legal reform, demonstrate the power of quiet intersectionalism and coalitions, and illustrate how diverse family structures can drive social change.

In Adopting the Gay Family, Godsoe delves into the disparate treatment of gay parenthood and gay marriage to show how adoption became a “stealth path” to marriage equality. As she explains, from the beginning, the push for gay adoption relied on a coalition of vulnerable groups. In the 1970s, unable to find homes for teenagers “with homosexual tendencies,” a few jurisdictions turned to gay and lesbian adoptive parents to take in children that the rest of society rejected. Similarly, in the 1980s, adoption agencies confronting the challenges of placing HIV-positive babies affirmatively sought LGBTQ adoptive and foster parents.

Although there was some backlash when conservatives learned that children were being placed with gay and lesbian adoptive parents, as Godsoe notes, opposition to these policies was relatively cabined. Marriage, by contrast, has always been the more controversial topic—not a single state allowed same-sex marriage before allowing adoption by LGBTQ people. Godsoe identifies a number of factors that contributed to opponents’ simultaneous tolerance of gay adoption alongside their resistance to the prospect of gay marriage: the hypersexualization of queer people that blinded many to nonsexual aspects of their private lives, the interest in privatizing dependency by placing as many foster children as possible in adoptive homes, and the devaluation of foster children that generally kept them—and the issue of gay adoption—out of the public eye. In a humorous (if dispiriting) note, she points out that prominent voices in the marriage debate, both scholars and government actors, were simply ignorant of the law and assumed that LGBTQ people were barred from adopting, even in states that had been placing children with gay adoptive parents for decades.

Gay adoption’s invisibility, Godsoe points out, has important implications that complicate the dominant narrative that valorizes appellate courts and legislatures as reliable agents of social change.1 As she explains, because family law generally operates underneath the radar of legal analysis—absent a hook into constitutional law—the quotidian assessments of the best interest of a child are perceived as low stakes, and thus do not garner much attention. This lack of attention, coupled with the high level of discretion that family law judges enjoy, is often criticized on the ground that it can lead to decisions that are deeply informed by an individual judge’s prejudices. As Godsoe argues, however, in the context of LGBTQ adoptions, these factors combined to give some judges and adoption caseworkers the flexibility to place as many children in loving homes as possible, even though many of those homes were headed by same-sex couples. By the time such families came to the attention of people fighting over marriage equality, the horse was out of the barn. The thousands of same-sex couples raising children with the explicit imprimatur of the state fundamentally undermined arguments that marriage could be limited to opposite-sex couples in the interest of child welfare. In this regard, contrary to the conventional wisdom, lower-level judges and state-level bureaucrats functioned as powerful agents of social change.

It is hard to overstate how important the fact of existing same-sex adoptions were in the debate over marriage equality. For the most part, courts faced with claims that existing marriage statutes violated state or the federal constitutions applied rational basis review. On this account, any legitimate reason for limiting marriage to opposite-sex couples, even one hypothesized by a court, would be sufficient to reject a challenge to laws limiting marriage to opposite-sex couples. Indeed, multiple states argued that mere doubts about the effect of same-sex parents on children should be enough to support restrictions. As these jurisdictions argued, absent clear evidence that LGBTQ parents did not pose harm to children in their care, it was rational for a state to prefer “traditional” marriage. In theory, this argument could easily have succeeded. In practice, however, the fact that many of these jurisdictions were affirmatively placing foster and adoptive children with LGBTQ families made the argument appear blatantly irrational. By the time the Supreme Court took up the question of same-sex marriage in Obergefell v. Hodges, the issue was no longer whether same-sex parents posed harm to children, but rather whether their exclusion from marriage posed a dignitary harm to same-sex parents and their children. In this way, the paradox of state-sanctioned same-sex adoption helped lay a foundation for legal recognition of these families through marriage.

In exploring the interaction between gay adoption and marriage equality, Godsoe highlights a number of provocative implications for family law more broadly. The invisibility in some quarters of foster and adoptive families revealed the many dangers of focusing reform efforts on privileged groups. As Godsoe explains, the idealized nuclear family imagined—and valorized—in marriage equality litigation bore little resemblance to many LGBTQ families on the ground. In this regard, diverse family structures may not only drive changes in state-level family law and policy, but may also help shape and change constitutional doctrine as well. Finally, Godsoe exposes the lip service of appeals to child welfare in these cultural debates. For all their talk about the ideal family structure in which to raise children, policymakers paid little attention to whether vulnerable children were placed in “ideal” families or in families that these jurisdictions would later denigrate as “second-best” and “harmful.”

The long-term effects of the interaction between gay adoption and the marriage equality debate are far from clear, but Godsoe paints a compelling picture of how low-level public servants quietly furthering the interests of two maligned and discarded groups contributed to significant reform. In so doing, she prompts the reader to wonder whether marriage equality is the only arena in which such coalitions can prevail.

  1. See Douglas NeJaime, The Legal Mobilization Dilemma, 61 Emory L.J. 663, 688-94 (2012); William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419, 425 (2001). []
Cite as: Dara E. Purvis, Inconsistency, Marriage Equality, and Legal Change by Stealth, JOTWELL (September 15, 2016) (reviewing Cynthia Godsoe, Adopting the Gay Family, 90 Tul. L. Rev. 311 (2015)), http://family.jotwell.com/inconsistency-marriage-equality-and-legal-change-by-stealth/.