Future Forum: Guilt, Innocence, and the Death Penalty 
Family Values
What if every time the state legislature was in session, your right to raise children was up for debate, and bills that might take your kids away were getting closer and closer to the governor’s desk? This is what it’s like to be one of the 84,000 gay parents in Texas.
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Last October about two hundred gay parents—and dozens of kids—met at the Fairmont Hotel in the Dallas neighborhood of Oak Lawn for a national gay parenting conference. The event was organized by Family Pride, the Washington, D.C.—based advocacy group that made headlines last spring by crashing the White House Easter Egg Roll with a crowd of gay parents and their offspring in tow. Despite her husband’s official position on gay families—he opposes gay marriage and gay adoption—first lady Laura Bush was a gracious host. (Her decorum, as it turned out, was prudent, since soon she will likely be hosting a “gayby” with the last name of Cheney at the White House.) The conference in Oak Lawn, one of America’s largest gay neighborhoods, drew parents from across the country, and there were several movement celebrities present as well. In line for the lunch buffet, I met Mitchell Katine, the lawyer who originally argued the Lawrence v. Texas case that eventually made its way to the U.S. Supreme Court and resulted in a landmark decision overturning Texas’ sodomy law. Katine’s side prevailed; when we met, however, he was losing a debate with his five-year-old daughter about whether or not she liked pasta. Later, during the afternoon session, the audience broke into spontaneous applause when Family Pride’s executive director, Jennifer Chrisler, introduced Sandy Schuster and Madeleine Isaacson, who won an important child custody case in the late seventies that paved the way for gay adoption.
In the nearly three decades since that first victory, there has been a tremendous shift in the nation’s attitude toward gay parenting. Every major child welfare organization, along with the American Psychiatric Association, has now concluded that children raised by same-sex parents are no less healthy or well adjusted than those raised by straight parents. (Nor are they more likely to be homosexual.) A long list of Fortune 500 companies now provides benefits to domestic partners and their children. (The conference itself was sponsored by IBM, CapitalOne, American Airlines, and Walt Disney, among others.) A 2006 poll found that 48 percent of Americans objected to gay adoption, down from 57 percent in 1999. The under-thirty demographic is the most tolerant, which has given the movement hope that a generation from now, gay families will be considered normal. Ironically, Chrisler attributes the favorable polling trends of the past ten years at least in part to the explosion of anti-gay ballot initiatives that followed congressional passage of the 1996 Defense of Marriage Act, which allowed states to refuse to recognize same-sex marriages performed in other states. Until Arizona’s constitutional amendment failed last November, no ballot measure opposing gay marriage had ever lost (most have passed by wide margins). Yet Chrisler believes that despite their success at the polls, these measures have had the unintended consequence of starting a national conversation about gay families, one that has apparently led to a loosening in some quarters of hidebound attitudes concerning the morality of same-sex relationships.
It is impossible to talk about gay parenting without talking about gay marriage, because the inability to marry is a big part of what makes child rearing so fraught with legal difficulties for gay parents. What most people object to about gay marriage is the notion of sanctifying homosexual relationships in the same way as heterosexual relationships. This is because, for most people, marriage is first and foremost a religious celebration. Yet marriage is also a civil contract, one that bestows benefits so customary that most married couples cannot even name them. Gay and lesbian couples must spend thousands of dollars in legal fees to obtain even an approximation of the benefits and protections provided to straight couples by a marriage license that costs around $40. A child born to a married couple, for example, is automatically in the custody of both the mother and the father at the moment of its birth. In a gay household, one parent typically has initial custody, whether a child enters the family through artificial insemination or adoption. (When a gay couple applies to be a foster family in Texas, CPS treats the home as a single-parent household with “other adults present” and deals principally with only one partner.)
Whether because of the cost (typically about $5,000) or because they do not know they can, many gay couples never take the next step of second-parent adoption, even in states where the practice is legal for same-sex partners. Failure to secure joint custody of children can have grave consequences, far beyond the day-to-day power to make decisions about medical care and schooling. If an unmarried same-sex couple splits up, issues of child support and visitation become potential legal quagmires. Noncustodial parents can be prevented from visiting their children in the hospital and may not be able to add them to their employer’s health plan. If, in the worst-case scenario, the birth or adoptive parent in a same-sex couple should die, the surviving parent would have no legal relationship with the child, even if he or she has raised the child from infancy. The child’s grandparents, aunts and uncles—even a sperm donor—might have more of a claim on the child than the surviving noncustodial parent.
There is no contract available at any price that will provide a gay household with the benefits that the federal government bestows on heterosexual married families. Outside of farming, marriage is perhaps the most subsidized institution in America, supported by more than one thousand federal policies, most of them in the tax code. Gay couples cannot file joint tax returns. They cannot avail themselves of family medical leave when a partner gets sick. When a married person dies, Social Security pays survivor benefits to the spouse and children. This is actually one of the most common forms of support the government provides to families in need; there are many more children supported by Social Security benefits in this country than by welfare payments. But absent a legal relationship with the deceased parent, survivors in gay families cannot receive these benefits, even if the lost parent has paid payroll taxes for decades. Nor can they inherit money or property without paying significantly higher taxes than survivors of a married person.
Massachusetts is currently the only state that allows gay marriage, though a handful of other states have civil union or domestic partnership laws. With court cases pending in several other states, that number will likely grow in the coming years. The federal Defense of Marriage Act has left the national landscape so fractured, however, that couples who move from one state to another may not know what to expect. Family Pride’s Chrisler, for example, legally married her partner and had two boys while living in Massachusetts, which meant she and her spouse had joint custody of the children, just as any married heterosexual couple would. Yet Chrisler’s spouse still had to go through the lengthy and expensive process of second-parent adoption when the family decided to move to Washington, D.C. “We knew that was the only way to protect ourselves and our children if we moved to another state that refused to recognize our legal marriage,” Chrisler said.
The legal landscape for gay adoption is even more fractured. Five states have either outright or de facto bans on adoptions by gay individuals or couples. The status of same-sex second-parent adoption is haziest: In four states appellate courts have rejected the practice; in seven states and the District of Columbia they have upheld it; and in some three dozen others the law is unclear. The problem is more than hypothetical. One couple at the Family Pride conference, Anne Magro and Heather Finstuen, sued the state of Oklahoma to force authorities to recognize a second-parent adoption they had completed prior to moving there. A federal judge sided with the couple. It was not hard to see the rationale behind the state’s effort, however. By passing the Defense of Marriage Act, Congress has given the states the green light to ignore one type of contract—so why not others?
FOR YEARS, THE DEBATE in the Texas Legislature over homosexuality was an elaborate dance that had little to do with making public policy. Under Democratic Speaker Pete Laney, most anti-gay legislation remained bottled up in committee, never reaching the floor, where a record vote could do much more damage to the Democratic caucus than the Republican minority. When floor debates did occur, former Austin legislator Glen Maxey, the Legislature’s only openly gay member, was often called upon to lead the Democratic response. He was known for his creativity; in one instance he famously voted for an anti-gay measure (after satisfying himself that it had no chance of making it through the Senate) and urged his fellow Democrats to do the same. They gratefully did, after giving Maxey a standing ovation. When a confrontation could not be avoided, however, things could get very ugly. In 1999 an attempt to extend a proposed hate-crimes bill to cover gays and lesbians caused utter mayhem in the Legislature. Then-governor George W. Bush and his adviser Karl Rove, looking ahead to the 2000 presidential contest and the all-important evangelical vote, stood by as Senate Republicans killed the bill in committee, despite a tearful in-person plea from the daughter of James Byrd Jr., the murder victim for whom the bill was named.
That episode hurt Republicans as much as it did Democrats—as did another notorious incident in 2002. In the primaries that year, a political action committee run by Richard Ford, one of the founding fathers of the Christian conservative movement in Texas, went after a number of moderate Republicans, among them Senator Jeff Wentworth and acting lieutenant governor Bill Ratliff, with a series of scurrilous mailers accusing them of supporting gay rights. With the ranks of Democrats dwindling in the Legislature, Republicans had begun gay baiting one another. The mailers provoked a massive backlash, as Ratliff, one of the most powerful Republicans in Texas, attacked Ford publicly. Ford had the last laugh, though: In the next session, Warren Chisum finally passed his state-level Defense of Marriage Act, on the fourth try. Wentworth, the erstwhile moderate, was the Senate sponsor.
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