Under the Gaydar

How gays won the right to raise children without conservatives even noticing.

No one knows for sure how the Supreme Court will rule on the two high-profile gay marriage cases it is now considering. The betting, however, is that, regardless of the outcome, progress towards marriage equality will persist. A majority of the public now believes gays and lesbians should have the right to wed. Nine states and the District of Columbia have laws on the books conferring such rights. A stampede of Democratic elected officials has announced support for same-sex marriage, and in its recent “autopsy” report the Republican National Committee hinted its members should do the same.

Although progress has been unusually swift, this story of same-sex marriage rights has followed a familiar path, one blazed by women and African Americans in their struggles for equality. Members of an out-group, advocating for their rights, demand a fundamental change in the legal interpretation of the constitution, which causes a series of high-profile court cases, state and federal laws and counter-laws, and all of it accompanied by a broadly-held national conversation that leads to a change in public attitudes, laws and legal interpretations.

But this isn’t the only way that civil rights advance. A few decades ago, openly gay and lesbian Americans did not have the legal right to raise their own biological children, much less adopt. Today, more than 25 states recognize the same legal benefits and responsibilities of parenthood regardless of sexual orientation. It is now routine for gays and lesbians to jointly adopt, to be recognized as co-parents, and to collect child support or demand custody or visitation rights—even without a biological connection to the child in question. All this has happened without the hallmarks of a traditional rights campaign. There were very few high-profile court cases, few legislative battles, and little public debate. In sharp contrast to marriage equality—where between 1993 and 2003 two pro-marriage rulings incited over 35 state bans—parenting litigation has provoked minimal public backlash.

At first blush, this would seem unlikely. Gay marriage, after all, is between consenting adults, whereas gay adoption involves children, so one would think society would be at least as skittish about the latter. Even countries that pioneered marriage equality, such at Denmark, have been slower to extend full parenting rights to same sex couples. And yet, paradoxically, in the United States, the opposite is the case: we’ve had a contentious, two-decade-long national debate about same sex marriage, one that has repeatedly featured in battles for the presidency, but have allowed same-sex couples to quietly begin legally adopting and co-parenting with hardly any national discussion at all. Why the difference?

The answer is that same-sex parenting rights have successfully advanced precisely because the legal wrangling over them has remained largely below the radar—a fact highlighted by Justice Scalia’s confusion about whether California even permits same-sex adoption during Supreme Court hearings on that state’s Proposition 8. Where marriage equality advocates had little choice but to engage in open political battles and bring high profile constitutional court cases on behalf of their fundamental rights, the fight for same-sex parental rights has mostly played out in obscure family courts, with few reporters present, and with advocates consciously delaying or avoiding high court review. This below-the-radar strategy created a foundation of “facts on the ground”–tens of thousands of intact gay and lesbian-headed families with children-well before most conservative activists were even aware the phenomenon existed, making their subsequent efforts to block same-sex parenting an uphill fight.

The legal struggle over same-sex parenting began in the 1950 and 1960s. As divorce laws loosened, a growing number of closeted gays and lesbians came out to their heterosexual spouses, leading to legal disputes over custody and visitation rights over the couples’ children. These cases were handled in local family courts, where records tend to be sealed. Few were ever covered in the newspapers. Fewer still resulted in victories for the gay spouses. Judges typically ruled that simply being homosexual made a parent unfit.

In one such case, in 1967, a lesbian woman named Ellen Doreen Nadler lost custody of her daughter to the child’s heterosexual father. Nadler petitioned the California appellate court, which found that the previous court was wrong to base its decision solely on Nadler’s homosexuality. Instead, the court wrote that the “primary consideration must be given to the welfare of the child.” In a retrial, Nadler still didn’t regain custody of her daughter, but the case set a key precedent: in custody cases, “the best interests of the child,” a legal doctrine dating back to the mid-1800s, and not the sexual orientation of the parent, should be the deciding factor.

That precedent proved decisive in 1973, when an Oregon court ruled in favor of a gay father when the mother—who had not seen her children in over ten years—challenged custody because of the father’s sexual orientation. The court determined that it was not necessarily in the “best interests of the child” to alter the custody arrangement, despite the father’s homosexuality. Similarly, in two companion cases in 1978, the Washington Supreme Court ruled that withdrawing custody from two lesbian mothers who were raising children together from both of their previous marriages, would not serve the children’s best interests. Although the court expressed some trepidation about the mothers’ relationship, it determined that a change in custody would be more harmful.

While groundbreaking in many ways, these unorthodox rulings attracted little public interest, largely because they were focused on the particulars of the cases and not framed in terms of broader homosexual rights. This was in sharp contrast to the budding gay rights movement, which at that time was starting to push for statutory changes in the law. In 1977, for instance, gay rights activists convinced Miami-Dade County to amend its anti-discrimination ordinance to include gays and lesbians. In response, an anti-gay rights coalition, “Save Our Children,” was formed, with country singer and Florida orange juice spokeswoman Anita Bryant as its leader. “As a mother, I know that homosexuals cannot biologically reproduce children,” she proclaimed, “therefore, they must recruit our children.” Yet despite her rhetoric and the group’s name, Bryant and her allies didn’t focus on gay parenting. Instead they went after higher-profile anti-discrimination ordinances that included sexual orientation and, in some instances, tried to remove gay and lesbian teachers from public schools. The Florida legislature did subsequently pass a law barring single gays and lesbians, as well as same-sex couples, from adopting children, but only one other state, New Hampshire, followed suit.

In the 1980s, the same-sex parenting movement continued to move quietly forward. Family courts began to see cases where gay and lesbian couples with children were petitioning for parental rights for the non-biological partner. Because these “other” parents were essentially legal strangers to the children they were raising, they were often barred from engaging in the most routine—and important—parenting functions: picking up their kids at school, visiting them in the hospital, or listing them as dependents on health or life insurance policies. That decade, family or lower courts in Oregon, Alaska, California, and Washington granted co-parent adoptions to same sex couples, with relatively little reaction from gay rights opponents.

Again, the secret to this progress was that gay parents and couples—who were by now aided by newly-formed gay rights advocacy groups—fought these cases in family court, where judges had wide discretion and public scrutiny was minimal. Aware of the perils of drawing public attention to these cases, advocates from national gay rights groups worked hard to camouflage their efforts. They removed their names from briefs, provided behind-the-scenes support, and avoided appealing losses to appellate courts, out of fear that higher-level court approval would awaken the sleeping giant of public opposition.

Some even developed strategies to educate judges who were likely to hear same sex parenting cases through seminars and bench books. They quietly met with judges to reassure them that their rulings would not be politicized. Says one advocate:

“You have to take steps to keep it under the radar. I make sure to tell these judges that this is not a test case. We are not going to put you on the spot. I appreciate that you are an elected judge and I am not going to do something that will hurt you.”

Eventually, same-sex parenting cases did make their way to higher courts in two states—ironically in the same year, 1993, that gay marriage hit the supreme court docket in Hawaii (the case that launched a nationwide debate). But rather than rally opposition to both issues, conservatives chose to focus their attention only on same sex marriage. Why?

For one, the co-parenting cases received relatively little attention from the mainstream press—again, because they were not being argued as matters of “gay rights.” Also, many pro-family activists also assumed, or at least hoped, that anti-marriage efforts would limit both marriage and parenting progress. They theorized that same-sex marriage bans would, like anti-sodomy statutes, impose a chilling effect on judges. So while conservatives were busy getting the 1996 Defense of Marriage Act through Congress and initiating state level bans on same-sex marriage, gay parents and their advocates continued to quietly amass significant court victories in Delaware , the District of Columbia , Illinois , Indiana , Maryland , Massachusetts , New Jersey , New York , Pennsylvania , and Vermont .

Meanwhile, by the end of 2004, anti-gay rights forces had won measures banning gay marriage in 40 states. Hoping to leverage these gains, pro-family advocates finally turned their attention to parenting. Between 2004 and 2006 the pro-family movement initiated over 35 attempts to limit same-sex parenting. In 2006, alone, 16 states were poised to initiate bans on same sex parenting legislatively or through the ballot process.

But—happily, for gay rights advocates—the anti-gay forces were too late. Despite dire predictions, very few of these anti-same-sex parenting measures went anywhere. Legislation died in committee and proposed initiatives never made it to the ballot. All the while—on the strength of decades of precedents and “facts on the ground”—family, appellate, and state supreme courts continued to grant adoptions to and recognize the parental rights of gay and lesbian parents.

Why did the backlash against same-sex parenting fail? It certainly wasn’t public opinion. The handful of polls from 2006 that questioned participants about both same sex marriage and adoption rights show that average Americans were no more comfortable with gay parenthood than with gay marriage. In fact, they opposed both by well over fifty percent. And if we take their arguments seriously, it is precisely concern about gay parenthood that drives opposition efforts against marriage equality.

Rather, the main problem for conservatives was that they were trying to roll back gay parenting rights that had, in effect, already been granted. This proved a tough sell. The media didn’t much cover the conservative anti-same-sex parenting campaign, and what few stories did run typically featured heartwarming narratives of gay and lesbian couples raising well-adjusted kids. Such families existed in the thousands precisely because the under-the-radar strategy had allowed them to flourish over the previous twenty years. Whereas gay marriage was still an abstraction that opponents could rally the public to prevent, gay families were a reality that the public would have to tear asunder to stop.

Also, by the mid-2000s, social scientists had conducted studies on same-sex families. In general, this research demonstrated that children of same sex couples were not appreciably different from kids raised by straight couples—including their propensity to identify as gay or lesbian. These studies were widely quoted in the media and used to foster support among child welfare experts.

All this made it a tough fight for anti-gay advocates. As an official at Focus on Family, a conservative Christian advocacy group, concedes, the issue was low on the “radar for pro-family conservatives” because of the “confusing rhetoric of same-sex adoption, the media bombarding the public with images of happy gay couples taking in disadvantaged kids” and the argument that “this kind of family is better than no family.” Adds another opponent, “trying to take the kids away…it’s a ridiculous battle to fight.”

That doesn’t mean the fight is completely over. Taking a page from the playbook of parenting advocates, opponents of gay parenting have begun engaging at the level of family courts as well. They are now advocating on behalf of gay biological parents who are in custody battles with their estranged gay partners who are not the children’s biological parents. Still, apart from such skirmishes, the right of same sex parents to raise their kids seems well on its way to being secured.

Same-sex parenting advocates weren’t the first to use an under-the-radar strategy to advance their cause, and probably won’t be the last. The Kennedy administration employed low-visibility tactics to both attract black voters during his campaign and encourage voter registration after he was elected. Some disability advocates, in their attempt to secure group housing for their disabled clients, circumvent public notification procedures when looking for appropriate housing and instead procure the property, move the clients in and wait to be discovered. And groups like the Nature Conservancy long ago figured out that instead of engaging in contentious public campaigns to get elected officials to do protect environmentally sensitive parcels of land it is often easier to raise money and quietly buy the land themselves.

History books suggest that our society has made its greatest leaps on the shoulders of high profile campaigns. But change can also be the result of quiet battles that play out in courtrooms, boardrooms and bedrooms all across the country. And it is often these hidden battles that most effectively propel our society forward.

Alison Gash

Alison Gash is the author of Below the Radar: How Silence Can Save Civil Rights (Oxford University Press, 2015). Her work on LGBTQ rights has also appeared in Politico, Newsweek, Slate, Huffington Post and The Conversation. She is an Associate Professor of Political Science at University of Oregon. Views expressed are solely her own and are not meant to represent those of the University of Oregon.