For more than 50 years lesbian and gay people have fought complicated battles to maintain and preserve the relationships they had with what they considered family. In the 1950s, lesbians in Daughters of Bilitis, one of the first gay/lesbian rights groups, struggled to find legal arguments that would protect women who "came out" while married from being legally estranged from their children. While mothers were almost always granted custody in divorce cases, the exception was lesbian mothers. Courts almost always viewed a lesbian mother as an unfit parent and often denied them visitation rights.
In the 1980s and 1990s, during the height of the AIDS epidemic, many gay men found they had no legal right to visit a dying lover in the hospital or to make medical decisions. Sometimes the dying man's biological family forbid this, other times it was simply hospital policy that did not allow input from non-family members. In the most extreme cases, some men even had their legal "domestic partnership," medical proxy, and living will arrangements challenged by their partner's biological family who claimed that their "family" ties were stronger than the legal paperwork.
Access to marriage would have provided a remedy in some of these cases—although not all. It certainly would not have addressed the underlying homophobia that fueled these fights. But the LGBT legal community eventually pioneered legal mechanisms to give basic protections to same-sex couples.
These legal protections in family law have been one of the triumphs of the gay rights movement. One of the most important of these has been the second parent adoption laws that allow a same-sex couple (and a heterosexual couple if they choose not to legally marry) to both adopt a child and have equal rights for and custody of that child. This would be true if one partner was the biological parent or if neither were. In both cases the couple would both have the same legal relationship to their children.
However, in late December 2010, a North Carolina Supreme Court decision put all second parent adoptions in the state at risk. Some LGBT legal scholars are claiming it may be a harbinger of other attacks on protections for LGBT families.
The facts of the case are simple. Julia Boseman (an openly lesbian state senator in North Carolina) and her partner Melissa Jarrell decided to have and raise a child. Jarrell gave birth to a son in 2002 and, three years later, she happily agreed to Boseman's adopting their son, giving both women full legal responsibility for the child. When the couple split up a year later, Boseman filed for joint custody.
Jarrell, who has always admitted that Boseman was an excellent parent, countered by filing for sole custody while also filing a class-action suit that claimed that all second parent adoption was illegal in North Carolina, and thus there was no legal standing for joint custody. Under pressure from the ACLU and gay rights groups, she dropped the class action suit, but still filed for sole custody claiming that the state did not recognize second-parent adoptions. After losing twice, she appealed to the State Supreme Court which upheld the lower court's decision on the joint custody, but invalidated the adoption.
The 5-2 ruling—which was clearly influenced by the religious sensibilities of the judges—took place in an increasingly conservative political context in the state. In fact, Jarrell's case was supported by several very conservative, anti-gay political groups.
Influential family law and LGBT law scholar Nancy Polikoff argued that the case is a disaster for same-sex-headed families: "[I]n the most far reaching, shocking, and unique aspect of Boseman, all second parent adoptions that have been granted in the state are void. With the stroke of a pen, hundreds of North Carolina children have gone from having two legal parents to having only one. While other courts have ruled that second parent adoptions are not permitted, until this case none had ruled that all previously granted adoptions were invalid. The court ruled that a second-parent adoption granted in North Carolina is void ab initio, a Latin term for 'from the beginning'."
Polikoff argues that there are tremendous community implications here as well: "I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman—a task she did not accomplish—and to do so she made an argument with enormous cost to North Carolina's children of same-sex couples. She accepted help in the form of friend of the court briefs from right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorrent and unforgivable. The law couldn't stop her, but her peers may have been able to. She has caused substantial damage and I want someone to remind her of that constantly. Do I sound angry? I am."
Polikoff is correct that the community needs to unite in support of progressive, just laws that protect children and their families and against rogue individual acting on personal pique, vendetta, and entitlement. While the Boseman/Jarrell case and the Supreme Court judgment is extreme, it does not exist in isolation. Over the years there have been a series of ugly child custody cases involving male and female same-sex couples. The most famous of these, covered in the mainstream press, is Lisa Miller v. Janet Jenkins in which the former, having renounced her homosexuality, fled with their daughter and refused all court orders to engage in joint custody.
The larger question is, "How do our cultural attitudes about children inform our ethical decision making and behaviors?" Rather than looking at this as a gay or a straight issue, we should be looking at it as a larger, more cohesive ethical issue. For all of the talk within the LGBT community about the importance of gay and lesbian families, the community has never really taken the time to think about its relationship to children.
Culturally, we have almost no models to rethink the institution of childhood. Any discussions about protecting the LGBT family and what that might mean or look like rarely opens up new, original, or useful discussions about the rights of children. Until that happens on a community level, we are going to see the same replay of bad, even horrible, behavior that has existed in heterosexual communities forever.
Michael Bronski is a professor in Women's and Gender Studies at Dartmouth College. His articles have been published in the Village Voice, the Boston Globe, GLQ, and the Los Angeles Times. His books include the current Queer Ideas and Action series, Pulp Friction: Uncovering the Golden Age of Gay Male Pulps, and An LGBT History of the United States (forthcoming).