“A heads-up to those of you still fretting about the alleged evils of gay marriage: The parade has moved on.” So argues Dahlia Lithwick, writing at Slate.com.
Lithwick contends that the world of family law and policy has now accepted homosexual parenting and homosexual adoption as normal and legal, and that this trend is irreversible.
To those who would oppose this, Lithwick’s advice is simple — get over it.
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.
She also argues that the when the courts decide to act “in the best interests of the child,” assuming an ability to do so, the result is an affirmation of homosexual adoption and parenting:
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 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.
Here we see the courts transformed into laboratories for social engineering. When judges decide that it is preferable for a child “to have two legal mommies rather than one,” this is really a judgment based in a court’s presumption that it knows best — and then it cloaks that presumption in the dignity of the law. This is the stuff of which social revolutions are made.