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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Had Texas’s 2005 referendum on gay marriage been postponed to 2006, an election year, it almost certainly would have saved the skin of at least one conservative state-level candidate, Corpus Christi representative Gene Seaman, who lost by only a few hundred votes. But that doesn’t mean nobody benefited from the campaign. A video message from Governor Rick Perry was prominently featured on the Web site of the Texas Marriage Alliance, one of several political action committees that sprang up in support of the amendment in the summer of 2005. (The PAC was run by the consulting firm of Perry ally John Colyandro, the Republican party operative indicted by Travis County district attorney Ronnie Earle in 2004 for allegedly steering illegal corporate contributions to legislative candidates.) Perry also appeared at a series of pastor’s briefings and pro-amendment rallies hosted by the Texas Restoration Project, a group of evangelical pastors. Perry’s public support for the measure was seen in Austin as a move to lock up evangelical voters in advance of an anticipated battle against two powerful primary opponents in Senator Kay Bailey Hutchison and Comptroller Carole Keeton Strayhorn. Apparently, it worked, as neither contender opted to enter the primary. Strayhorn, running as an independent, never took a position on the amendment, effectively ceding the issue to Perry.
Yet homosexuality as a campaign issue can be something of a double-edged sword, as the national GOP discovered when the Mark Foley and Ted Haggard scandals broke just prior to the 2006 midterm elections. Foley’s page-chasing damaged grassroots support for the party, but the bigger story—that gay conservatives were not uncommon on Capitol Hill, especially among congressional staffers—was at least as revelatory for social conservatives in the hinterland. Slater and Moore devote an entire chapter in The Architect to the phenomenon of gay conservatives in Washington, noting, among other revelations, that Rove maintained a close relationship with his gay stepfather throughout all of his trips to the anti-gay well. According to Glen Maxey, social conservatives in Texas might be surprised to learn who is gay at the Texas capitol. “If anybody believes that at the time I was in the Legislature that I was the only one, they’re smokin’ it,” he said. “There have been gay legislators that served before me, there were gay legislators that served with me, and there are gay legislators there today.”
ARE THERE SOUND public policy reasons for banning gay marriage and gay child rearing, or does the whole debate really boil down to Christian morality and partisan political gain? If we accept gay marriage, do we also have to accept, as Kelly Shackelford contends, such banned practices as polygamy, or even incest? The public policy imperative underlying the prohibition of incest is clear enough, but polygamy, at first blush, may seem to bear some resemblance to gay marriage. After all, aren’t we making a moral judgment when we outlaw multiple wives? In fact, as author Jonathan Rauch has observed, there are sound public policy reasons for rejecting polygamy as well: If too many men take multiple wives, there will be a shortage of spouses to go around. The result would presumably be a surfeit of alienated single men, probably disproportionately unemployed, who together might pose a dangerously destabilizing influence on society.
A better analogy for the gay marriage debate, some observers have suggested, is the historical debate over laws banning interracial marriage, or miscegenation, as it was called. Almost every state had such laws, which were originally a by-product of the slave economy. The rationale for the laws was usually couched in terms of what was natural or preferred by God, though the era also had its version of “the children will suffer.” “Our daily observation shows us that the offspring of these unnatural connections are generally sickly and effeminate,” one judge wrote in 1869, “and that they are inferior in physical development and strength, to the full blood of either race.”
Beginning with a court challenge in California in 1948, states gradually began to repeal their miscegenation laws, until, by the sixties, the state of the law had become a patchwork, with most of the holdouts located in the South. In 1967 the Supreme Court heard the landmark case of Richard Loving and Mildred Jeter, a mixed-race couple who left their native Virginia, where they could not get married, for neighboring Washington, D.C., where they could, and did. (Fans of historical ironies will note that this is exactly the trip that Vice President Dick Cheney’s daughter Mary and her partner may have to take if they want to seek joint custody of their child through same-sex second-parent adoption, which has been endorsed by appellate courts in D.C. but not in Virginia, where the couple resides.) Shortly after their return to Virginia, Loving and Jeter were arrested and indicted. The trial judge observed that God had created a different race for each continent. “The fact that He separated the races,” he concluded, “shows that He did not intend for the races to mix.” The judge gave the couple a choice: They could go to jail for one year, or they could leave Virginia and not return for 25 years. The Supreme Court overturned the decision, ruling once and for all that miscegenation laws were inherently discriminatory. Despite the ruling, many states, including Texas, did not repeal their laws for years, and only then when the Justice Department began exerting pressure on state governments. As appears to be the case with gay marriage today, the courts were well ahead of public opinion on this issue, and not just in the South: A 1968 Gallup poll found that only 20 percent of Americans approved of marriages between blacks and whites.
Comparisons between the plight of homosexuals and blacks are offensive to many African Americans, who tend to be more conservative on social issues than other ethnic groups. (At the same time, some of the staunchest defenders of gay rights in the Texas Legislature are African American.) Still, there is no question that homosexuals in Texas today are the last minority that employers, landlords, realtors, and just about any other private service provider can discriminate against with impunity. Though some localities have protective ordinances, gays and lesbians who have been discriminated against have no recourse under state or federal law in Texas.
There is one key difference, of course. By virtue of their appearance, many historically marginalized groups—such as African Americans, Asians, Hispanics, and women—are essentially self-categorizing, which makes discriminating against them a relatively simple matter. But homosexuals are more like the Irish, the Jews, or the Tutsis—you cannot necessarily tell one when you see one. That simple fact has considerable public policy implications, as Representative Talton discovered during the debate over his proposed gay foster parenting ban in 2005. Talton’s measure asked CPS caseworkers to discriminate based not on what people look like but what they do—what cognitive theorists call a “conceptual” categorization. Such work requires more time and effort, and as the functionaries at CPS observed, it’s also more expensive. Talton’s measure was retroactive, which meant caseworkers would have had to go back and investigate the sexual orientation of every unmarried man or woman with whom the agency had ever placed a child. There was also the cost of success to consider. Of the 19,000 or so children in foster care in Texas, between 2,000 and 3,000 are believed to be in gay households. The immediate cost of finding a new placement for all these kids was estimated to be $8 million. Disqualifying thousands of previously certified households would also be a considerable setback for the agency, which has a perennial shortfall of available families and a long backlog of kids waiting for placements. After Talton’s measure was shot down, Chisum surprised many longtime observers of his career by announcing that he was quitting the fight over gay parenting. “I’m not about to go out and beat up on the homosexual community,” he said at the time. “Some of them do a fabulous job of stepping in when no one else will.” Talton remains unconvinced.
DELLA NAGLE AND RUTH PINKHAM don’t have time to follow all the ins and outs of the national debate over homosexuality. They are far too busy worrying about dance lessons, financial aid applications, and the TAKS test. Daniel alone keeps them very busy—he is a soon-to-be Eagle Scout, plays for a chess club, and volunteers at a summer camp for disabled children. Still, the family can’t afford to ignore what happens in Austin every two years, and the parade of anti-gay bills has been enough to get the couple active in politics. “If you had asked me if I’d be an activist fifteen years ago,” Pinkham said, “I’d have said no way.” Nagle, on the other hand, comes from a family of activists. She remembers being at the March on Washington in 1963 with her father; her brother, Danny, for whom Daniel is named, was the leader of a union local at a prison in the South Texas town of Beeville. Just before Christmas of 1999, Nagle learned that her brother had been murdered by an inmate. The next day she got word that CPS had finally decided to let her nieces come live with her. “We went and picked up Polly and Stacie one day, and the next day we all went to the funeral,” Nagle remembered.
Nagle and Pinkham keep an unusually close eye on all their children. They are the Scout leaders for their daughters’ Girl Scout troop, and when they drive one of their children to dance lessons or band practice, rather than drop them off, they often wait nearby in the car. “We’re caught in an unfortunate position where we can’t be just as good as other parents,” Pinkham said. “We have to be better.”
I asked who they thought was watching. “The world,” they both replied at once, Pinkham about a beat behind Nagle. “The world.”
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