November 16, 2006
Conservatives, Here's Your Newest Analogy
November 16, 2006 09:44 PM
Jumping off the explication of the Bush base's connection between Dred Scott and Roe (both instances of judicial activism in which entities of uncertain status -- slaves/ African Americans in the former, fetuses in the latter -- were stripped of possible rights), I see a fresh way to invoke the infamous case. With same-sex adoptive parents afraid to travel to Oklahoma for fear that their daughter will no longer be regarded as their daughter, the Adoption Invalidation Law can be proudly viewed by conservatives as the abolitionist legislation of our time. Just as plaintiff Scott saw the Missouri Compromise as freeing him from slavery once he stepped into a territory that prohibited slavery, Focus on the Family and its ilk can use Oklahoma's law to free children adopted by homosexuals from the oppressive shackles of their gay parents' love and care. There's even the historical fillip of the quasi master-slave relationship between fathers and children.
Sure, someone might say that taking a 4-year-old from the only parents she has known would violate the family law requirement of acting in the best interests of the child, but you always can point those naysayers to the social science research quoted by FoF spokeswoman Carrie Earll. "A core part of the battle over marriage rights is 'whether same-sex parenting is best for children. The social science research says children do best with a married mother and father,' she said. 'We shouldn't tinker with what we know works.'" (I admit never having seen any social science research indicating significantly better outcomes for children with a married mother and father versus two same-sex parents with the same legal protections, but I assume FoF follows these things better than I. Therefore the harm requirement of Troxel v. Granville easily is met.)
Besides, "best interests of the child" is merely a common law standard and can be superseded by legislation that declares some statewide priority to be higher than a given judge's view of what's best for an individual child. As far as I know, minors do not have a Constitutional right to "best interests" determinations, so no matter how much an adopted child may need to have her homosexual parent recognized so he can, say, direct her medical care, the Adoption Invalidation Law bars him from doing so. And hey, the Romer-haters always can hope that Kennedy has seen the light and that Oklahoma's law will be upheld, thus overturning the precedent that otherwise invalidates a statute singling out homosexuals for adverse treatment.
"social science research indicating significantly better outcomes..."
Nor would one expect to, as there is abundant (and terrifying, to FoFers) social science evidence that outcomes are significantly the same. FoF doesn't so much get involved in promoting science, as manufacturing results. And harming kids, of course.
And trying to avoid having a full societal complement of parents.
And demonizing folks. But then, that's fun!
Is there some sort of anti-abolitionist equivalent, whereby ... um... straight kids would lose their parents... no... formerly unmarried couples raising children would be treated with respect upon crossing a line... no, that's crazy too.
Fun post, anyway.
If I can manage the energy to write another post, I think it will be about this.
I remember when this law was passed, and I remember the case that struck it down.
Surely, *surely*, the 10th Circuit will affirm. I'd love to see the briefs. I wonder if the plaintiffs also argue the infringment on the fundamental right to travel that this case poses?
The plaintiff's Complaint and brief in opposition to defendants' motion for summary judgment to the district court included the right to travel argument.
Thanks, PG! I did find the case and read the decision, so I saw that they argued it (I think the judge got it wrong, but I've not spent any real time analyzing it). Thanks for the brief and the complaint, though! Any chance you also have the briefs filed with the 10th Circuit? :)
Brilliant! You should write a law review article on this topic.
Thanks! I think this might be too small an issue on its own, and might work better as part of a larger discussion of social conservatism and interstate travel (which would pull in the Fugitive Uterus Act as well). While federalism often is championed as a way to let Americans disagree on some aspects of government (should there be a state income tax? legal gambling or prostitution?) yet remain in a Union together, the increasing capacity for interstate travel makes it more difficult to use federalism as a solution, or at least demands that we be more detailed in how we use it. If Oklahoma wants to ban adoptions by homosexuals, does allowing pregnant Oklahomans to have their offspring adopted by out-of-state homosexuals violate that ban? how about allowing the adoptive couple back into the state later without threatening their parenthood? Or going back further in the chain of events: what if the Oklahoma woman had decided not to finish her pregnancy, but OK banned abortion? can she travel to Colorado to get one? can someone help her get there if she isn't yet 18? And what about that gay couple and their desire to get married as well as adopt? If they met and wed in MA, and constructed their lives together on the premise that they would be recognized as married (for example, one stopped working outside the home and relied on the health insurance of the spouse), they cannot travel without risking the loss of their marriage and the benefits and responsibilities it entails. I think the whole backhanded comparison to pre-Civil War America, where the slaveholders complained that they could not travel to free states and territories without fear of losing their legal right to hold another human in bondage, can be quite interesting.
"..use Oklahoma's law to free children adopted by homosexuals from the oppressive shackles of their gay parents' love and care. There's even the historical fillip of the quasi master-slave relationship between fathers and children."
This would assume that children are unhappy and dissatisfied with their gay parents' "love and care" when maybe they are thriving? And when said children are freed, where will they be sent after they've been taken from those they know and are already attached to? I can see how potentially in some cases the gay parental relationship would be unhealthy for a child, however, one must be careful not to pull a child out of one "bad" situation only to place the child into another unhealthy home situation.
And if gay parents are being targeted, what is to be said for unmarried parents who are raising children? Do they too fall under the category or does this strictly affect gay parents?
One the other hand, studies have apparently shown that a child does better in a mother/father household as opposed to a same-sex marriage household. When considering these cases, one also should consider the child and the consequences of whatever action.
Interesting post, it brought up some questions I had not considered and also answered a few questions I already had. Thanks. :)
Caveat: I did intend the post tongue-in-cheek; if this wasn't apparent, I guess my college newspaper editor was right that I should stay away from the funny.
"One the other hand, studies have apparently shown that a child does better in a mother/father household as opposed to a same-sex marriage household. When considering these cases, one also should consider the child and the consequences of whatever action."
I wasn't aware that there were any studies comparing children of married opposite-sex partners versus those of married same-sex partners -- I assume any such studies would have to be done in other countries, as the U.S. has had same-sex marriage only for 2 years, which would be far too little time to determine how kids were turning out. I would think that the same-sex households actually probably would do better, partly because of a selection bias: straight folks get hitched by default and can have babies by accident, while gay people go against the "norm" by getting married and have to invest a great deal of effort in getting children.