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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ON A CRISP SUNDAY EVENING LAST FALL, Della Nagle stood in the living room of her suburban San Antonio home and ordered everyone to get ready for church. Nagle, who is 45, has taught junior high for most of her career, and you can hear it in her voice—a tad louder than necessary, with a preference for short, declarative sentences that leave little room for adolescent mischief. Three of Nagle’s five children play in the church ensemble—in fact, they are the ensemble—so they had to be on time for services. Daniel, the oldest at sixteen, sat at a makeshift computer desk beneath a tchotchke-covered wall in the living room, absently tapping at a keyboard as he waited for the family to assemble. First down the stairs was his thirteen-year-old sister, Sammie, bearing a clarinet case. “It sucks,” she announced. “I’d rather sing.” Her purple T-shirt read “I’m in charge here, the parents are just for show.”
When everyone was finally gathered in the back of the family’s cluttered red minivan, Daniel, who had recently obtained his learner’s permit, began lobbying to drive. “I need the highway practice,” he said. (His very first attempt had resulted in a collision before the van had left the driveway.) His driving problems notwithstanding, Daniel, who has a thin mustache and a mop of thick black hair, is uncommonly bright. He attends a medical arts magnet school, where he is at least a year younger than his fellow seniors. He is a whiz at calculus, and he somehow managed to pass the Advanced Placement physics exam, even though he only took the regular physics course. He is applying to Yale for this fall.
Though he has grown into a confident young man, Daniel’s birth was shrouded in secrecy. From the beginning of her career as a teacher, Nagle had hidden from her colleagues and supervisors the fact that she was gay. She and her partner of four years, a fellow schoolteacher named Ruth Pinkham, lived together and were raising two teenage girls from Pinkham’s first marriage. When the couple decided they wanted a child of their own, Nagle told her supervisor only as much as she had to: that she was planning to have a child by artificial insemination and that there was no man in her life. But an unmarried pregnant teacher, regardless of her sexuality, was taboo in 1990. (It still is in most districts.) Her principal offered her a choice: She could transfer to a cafeteria job at a different school until she had the baby, or she could invent a phantom husband.
“I needed my job,” Nagle recalled. “So if that’s what it took, that’s what I did.” She procured a random photo of a soldier and brought it to work, claiming to have married him in a whirlwind romance over Christmas break, while he was home from a deployment in Germany. Since she already kept her home life walled off from her colleagues, maintaining the ruse was not difficult—once she got through the surprise wedding shower her fellow teachers threw for her. Another tall tale—a live-in boyfriend with a vasectomy—got her through the door at the University of Texas Health Science Center, which was disinclined to admit a single woman as an insemination patient. Nine months later, Daniel was born.
When she got pregnant again, Nagle realized her boss’s patience had run out, and she moved on to another school in San Antonio. The family grew larger five years later, when a pregnant teenager came to Nagle and Pinkham looking for help. Unable to find an adoptive family, they decided to adopt the baby girl themselves. By this time they were raising three children on the salaries of two teachers, and Nagle and Pinkham decided they had enough kids. That all changed in 1999, however, when Nagle learned that her sister’s three daughters had been taken into state custody because of an abusive father. Nagle stepped in and offered to take care of the kids, though it took a year to convince Child Protective Services (CPS), the state foster care agency, to let them move in. Nagle and Pinkham also had to convince an East Texas judge that their household was the best place for the girls. To their surprise, he seemed impressed by the fact that the couple had held a small wedding ceremony in their local church, even though they knew it wasn’t legally binding. “He pointed out that we went to all that trouble,” Nagle said, “while the girls’ parents never even bothered to get married.”
Despite the unusual provenance of each of Nagle and Pinkham’s children, in one sense the family is quite typical. There are more gay couples with children in the South than in any other region. Texas in particular has been at the forefront of the gay parenting boom: According to a study of the 2000 census by the Urban Institute, a nonpartisan think tank, homosexual couples in Texas are more likely to have children than those in almost any other state. Nationally, about one in four gay couples has children; in Texas, the figure is closer to one in three. San Antonio, surprisingly, has emerged as an unlikely gay parenting mecca, with the nation’s highest percentage of gay households with children. The reason for this is unclear, though it may have something to do with the city’s sizable number of Catholics, like Nagle and Pinkham. A good number of these children are being adopted following foster care placements through CPS, though the agency can’t say for certain how many. (Foster care is a temporary arrangement supervised by the state; adoption is a legal proceeding granting permanent custody.)
Gay adoption was virtually unheard of before the seventies, but over the past thirty years it has become in many ways institutionalized. Just as there are sperm banks that cater to lesbians and certain foreign countries that are known for their “don’t ask, don’t tell” adoption policies, there are now private agencies that are known for assisting gays and lesbians with adopting children from the state. A sort of network of advocates and lawyers has developed to steer clients to judges inclined to grant gay and lesbian parents “second-parent” adoptions, which allow them to share custody of a child, just as married couples do. (Traditionally, second-parent adoption, sometimes called stepparent adoption, has been used by heterosexual spouses who marry into families with children already present.) In a very real sense, however, gay parenting in Texas remains in a state of legal limbo. The Texas family code, like that in most states, is silent on the issue of same-sex second-parent adoption, which means that the fate of each application is entirely at the discretion of the state judge who hears the case. Such gray areas in the law are not uncommon, but the sensitive and controversial nature of this type of adoption has given it a sort of semi-underground status in Texas, not unlike the legal uncertainty surrounding the use of medical marijuana in California, which has been sanctioned by the state government but is still considered a crime by federal authorities.
In recent years, national gay parenting advocates have focused their energies on the South, in part because that is where so many of their constituents live but also because Southern state legislatures are the most hostile to gay rights. In a 2006 television interview, Tennessee legislator Debra Maggart claimed that gay men adopt to secure unfettered access to children they can molest. Here in Texas, two Republican legislators, Warren Chisum, from Pampa, and Robert Talton, from Pasadena, have filed so many anti-gay bills in the past decade that they have become nationally known figures in gay advocacy circles. In 1999, and again in 2003, thousands of gay foster parents hoping to adopt the kids in their care sweated as legislation was introduced that would have forced the removal of children from their homes and banned all future placements in gay households. Another bill filed in 2003 would have outlawed all adoptions by gay couples. None of these bills actually made it to a vote, but in the 2005 session, a measure by Talton to ban gay foster parenting passed the House, only to be killed at the last moment before it reached the governor. Talton is widely expected to try again this session.
The effort to outlaw gay foster parenting and adoption in Texas is an offshoot of a broader movement among Christian conservatives to organize opposition to gay rights nationwide. The movement has a tremendous amount of momentum: In the past ten years, 26 states have amended their constitutions to outlaw gay marriage. Parallel efforts to ban gay parenting have been less successful—thus far. Yet even when such bills don’t pass, Pinkham said, they have an impact on children, especially fragile kids who have been through the state foster care system. “Kids need to know that somebody is there for them forever,” she said. “That’s what adoption does: It gives them a legal somebody for the rest of their lives.” Two of Nagle’s nieces are still living with the family, and Nagle and Pinkham are trying to save enough money—roughly $5,000 in legal fees—to formally adopt the girls. An adoption proceeding will mean convincing another judge of their fitness as parents, a prospect that gives them some trepidation. Lately, however, they have been more concerned about convincing the people of Texas—and their elected officials—that they are good parents. They have reason to worry. In the fall of 2005, Texans approved by a landslide a state constitutional amendment (authored by Chisum) to ban gay marriage. At its core, the debate over gay parenting turns on the same fundamental question that the gay marriage referendum posed: What makes a family?
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.
The specific issue of gay parenting hit the Legislature’s radar screen in 1997, when a CPS supervisor named Rebecca Bledsoe abruptly removed an infant from the home of a lesbian foster couple in Dallas. The parents had not violated any of the agency’s policies, but Bledsoe removed the child anyway, citing the “open and notorious criminal sexual conduct” present in the home. Gay sex was, in fact, illegal in Texas at the time, but the law was seldom enforced. In any case, sexual orientation is not among the criteria that the state considers when someone applies to be a foster parent. It came as no surprise, then, when Bledsoe’s superiors at CPS demoted her for failing to follow proper procedure in removing the child. Bledsoe in turn sued the agency, demanding her job back and a statewide injunction against placing children in gay households.
As a cause of action, the lawsuit was thin soup. As political theater, the Rebecca Bledsoe show could not have opened at a better time. Texas, like the rest of the nation, was just beginning to tackle the gay marriage issue, and opposition to homosexuality was rapidly becoming a central organizing principle for politically active Christian conservatives. Into this debate came Bledsoe’s incendiary portrait of a Dallas CPS office infiltrated by a cabal of lesbians bent on placing the state’s most vulnerable kids in gay households. Bills to ban gay foster parenting and adoption (in addition to gay marriage) were filed in the next legislative session, and Governor Bush came out in favor of all of them, making gay parenting a front-page issue in Texas.
Bledsoe’s attorney in the lawsuit was a disciple of Richard Ford’s named Kelly Shackelford, who heads the Free Market Foundation, in Plano. Just a twenty-minute drive from Oak Lawn, it has emerged as a headquarters of sorts for the gay rights opposition in Texas. The name of the foundation, which occupies a suite in a modest two-story office building filled with realtors and law offices, is mostly a vestige of an earlier mission. Under Shackelford, a Baylor University law graduate in his mid-forties, the foundation and its sister organization, the Liberty Legal Institute, have made a much bigger splash in the realm of social and religious freedom issues than they ever did in business regulation and taxation.
Shackelford is a prodigious giver of media interviews and often submits amicus briefs to the U.S. Supreme Court. A painting behind his desk pictures him arguing before the high court. Though he is an affable man with a genuine love of reasoned debate, Shackelford does have a flair for the dramatic: When the Supreme Court took up the issue of so-called partial-birth abortion last fall, he submitted a brief on behalf of a boy who he said had survived the procedure. “They set him aside to die,” Shackelford told me, “but after three days, they realized, ‘Hey, I guess we’ll have to do something with this kid.’ ”
In 2005, with money from conservative heavyweights James Leininger and Bob Perry, Shackelford helped organize the Texans for Marriage political action committee to support Chisum’s constitutional amendment banning gay marriage. I asked Shackelford to respond to what amounts to a sort of free-market take on the gay parenting debate, one that his own intern volunteered to me while I waited in the lobby for our interview: Why should the government favor one type of child rearing over another, subsidizing straight parents but not gay parents?
“You’re talking about experimenting with something,” Shackelford replied. “And the guinea pigs are kids.” In any case, he continued, child rearing is not the only societal benefit of heterosexual marriage. Longevity increases for both men and women when they are married, and rates of child and partner abuse go down. (Of course, these benefits may also accrue to men and women in gay relationships; the data is too sparse to say one way or another.) “Society is not trying to point to every specific individual situation, however anomalous it is,” Shackelford said. “It’s trying to encourage the one relationship that naturally produces these things. And when you start changing it, there really is no reasoned distinction for stopping at where the homosexual activists want to stop. All of the arguments they make would be totally consistent with polygamy as well.”
It’s not just the end that Shackelford objects to, it’s also the means by which gay activists are trying to achieve it—through the courts rather than in state legislatures. Advocates for gay marriage have relied on successful test cases, first in Hawaii, then in Massachusetts and, most recently, in New Jersey, where they have persuaded judges to change state law from the bench. Opposition to these “activist judges” has become something of a mantra in conservative circles in recent years. “It takes an incredible level of arrogance and elitism to think that they found the new truth and that they’re gonna force it on people,” Shackelford said. Of course, looking for a test case to change public policy is not an uncommon strategy; at this very moment, conservatives are searching for just the right case to overturn Roe v. Wade. But when judges seem to be ahead of the people, as the results of some two dozen referenda on gay marriage certainly seem to suggest, the “judicial tyranny” argument starts to gain traction. Conservative activists have parlayed that traction into support for their holy grail, an effort to amend the U.S. Constitution to ban gay marriage, which would obviate any future court challenges by gay activists on any grounds. Powerful social conservatives, like James Dobson, of Focus on the Family (with whom the Free Market Foundation is affiliated), have made a federal amendment their number one priority. Although President Bush paid lip service to the idea during his 2004 reelection bid, the amendment campaign never really got off the ground in Washington; with the Democratic takeover of Congress, it is now dead in the water.
As our interview came to a close, I asked Shackelford about a television spot that Texans for Marriage ran in several major markets in the final week of the campaign to amend the Texas constitution. He said I could probably still find it on the PAC’s Web site if I wanted to watch it. Then, beaming at the memory of the successful campaign, he suddenly swiveled his chair around and brought up the site on his computer. The video showed a male and female hand reaching out for each other against a black background as a piano played and a solemn voice-over read a passage from Genesis: “For this reason, a man will leave his father and mother, and be united with his wife, and they will become one flesh, for God’s design.” The final shot showed the two hands united, along with the hand of a baby, under the words “For God’s Design.” After it was over, I observed that God’s will was not something that had come up in our interview. Shackelford seemed slightly sheepish. “Well,” he said, “that one line out of Genesis kind of speaks for itself.”
THE UNDERLYING SENTIMENT of the Texans for Marriage spot—that homosexuality is an abomination before God—is at the core of much of the debate over gay issues in Texas, though it is not always so elegantly expressed. One of the videos shown at the Family Pride conference in Oak Lawn paused on a still photograph of two little girls locked arm in arm, one smiling at the camera and the other looking perplexed. Their identical oversized T-shirts read “God Hates Fags.” The last-minute defeat of Robert Talton’s gay foster parenting ban in 2005 prompted him to write an angry letter, laden with biblical references, to a fellow Republican legislator who had failed to support his cause. (Talton, a hot-tempered ex-cop who once posted the Capitol police at his door to keep lobbyists for gay causes away, frequently refuses to grant interviews for stories about gay issues, including this one.) A black pastor named Howard Caver, who helped found a coalition of black ministers called Not on My Watch that organized support for the 2005 gay marriage referendum, told me he saw gay marriage as a sign of a country in decline. “If God does what he usually does, he’ll have some weak nation take us over,” he said. “Will it be Iran? North Korea? I don’t know.”
The sincerity of such sentiments notwithstanding, you don’t have to be a cynic to see the strategic value of gay issues for conservative political strategists. “From the Republican point of view, it has always been the perfect wedge,” said Randall Ellis, who has lobbied for gay interests at the state capitol for years. Public debate on any gay issue unites the Republican base while slicing up the Democratic caucus like an apple pie, splitting rural constituencies from urban and minority from white. Few understood this earlier or better than Karl Rove, who was widely considered the guru of gay baiting during his years as the top political consultant in Texas. As Wayne Slater and James Moore report in their book The Architect, Rove’s most notorious project was a 1994 whisper campaign against Governor Ann Richards, whose unmarried status and supposed predilection for gay and lesbian political appointments, it was suggested, meant she might have been gay herself. The smear included a salacious last-minute flyer—unsigned, of course, by the Bush campaign—picturing two shirtless men, one black and one white, kissing each other over a tagline that read “This is what Ann Richards wants to teach your children in public schools.”
Rove is still at it. According to Slater and Moore, Rove was the man in the White House who recognized long before anyone else the importance of gay marriage for the 2004 elections. Constitutional amendments banning gay marriage were on the ballot in eleven states in 2004, and they were widely credited with providing the increased evangelical turnout Bush needed to defeat John Kerry, particularly in the key swing state of Ohio. Rove made sure that the Republican National Committee got behind the Ohio ballot measure when the time was right.
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.”