Why Judges Are Recognizing Gay Parents
Um, because it's good for the kids? Imagine that. Dahlia Lithwick writes on Slate:
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 reinforces the legal proposition that children are not their parents' chattel; the state has an obligation to privilege their needs, sometimes even over the needs of their own parents, and other meddlesome adults. 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.
Just speaking in probabilities, who's likely to be a better parent, somebody who accidently shits out a kid because they forgot birth control, or two people who spent thousands of dollars and years to make it happen the newfangled way?







> or two people who spent
> thousands of dollars and
> years to make it happen
Right. Let's not make it too easy on 'em!
(G'morning, Patrick...)
Crid at March 15, 2006 12:54 AM
I agree with gay parental rights, adoption, and even marriage, but I think allowing judges to make these determinations is wrong and counterproductive. It is wrong because that is not the job of the judiciary, and it is counterproductive because it may lead to a serious backlash like the gay marriage ruling in MA. As a result of that ruling, a number of states, including California, have passed bans on gay marriage.
nash at March 16, 2006 6:41 AM
I disagree with Nash - I think it is appropriate for judges to address this area when the situation presents itself - like a custody case where someone argues that a parent is unfit simply because of being gay. Or a lesbian couple petitioning for one woman to adopt the birth mother's child - or any number of other scenarios that crop up regularly in the courts. The judges are just deciding the cases in front of them, which is what they are supposed to do, and a potential backlash is not a good reason for a judge to duck the issue.
Melissa at March 17, 2006 6:37 PM
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