Last week I ran across a fascinating chart. It shows a state-by-state analysis of popular support for various lgbt issues and the degree to which that support has been translated into actual law. It’s worth spending some time studying the chart, which was prepared by Jeffrey Lax and Justin Phillips, both of whom are political scientists at Columbia University. There’s a lot of information packed into there, some of which is discussed a Columbia University website.
Given my particular interests, I want to focus on the data gathered about second-parent adoptions. (If you need to catch up on what a second-parent adoption is, you can check this earlier post.) This is shown on the chart as black circles or dots. The dots are filled in if second-parent adoptions are allowed and left unfilled if second-parent adoptions are not available.
I should note at the outset that while I don’t know exactly how Lax and Phillips categorized states (it isn’t always easy), I do know that the number of black dots is too small. In some states there is no clear uniform rule permitting second-parent adoption, but they are in fact available. Lax and Phillips may have elected not to count these states. So, for example, Pennsylvania, where you can in fact complete a second-parent adoption, has a black circle rather than a black dot.
So, back to the chart generally. The further to the right an issue’s dot is on the chart, the more popular it is. While the placement of particular dots varies state-to-state, the order of the dots is mostly the same. And generally speaking, second-parent adoptions are towards the unpopular (left) end of the spectrum. In all but three states, same-sex marriage is the least popular gay-rights issue with second-parent adoptions having just a bit more support. In two of the remaining states, second-parent adoptions are even more unpopular than marriage. And in one state (Arizona) it looks like marriage and adoptions are equally unpopular.
In short, second-parent adoptions are nearly as unpopular as marriage and quite clearly significantly less popular than civil unions or health benefits and the other issues noted on the chart.
But now count the solid black dots–keeping in mind that there are, if anything, too few of them. According to the chart, 20 states permit second-parent adoptions. By contrast, only 12 permit the clearly more popular civil unions. (That includes all the marriage states, by the way.) Fourteen states provide for health benefits for same-sex partners. You’ve got to go all the way over to the gold dots showing employment discrimination protections to find another policy endorsed by 20 states. And second-parent adoptions are undercounted.
There is what appears to be an anomaly here. Second-parent adoptions are much more commonly available than their popularity suggests they should be. What explains this?
I think it ties back to the way family law–and especially law around parentage–gets made. Most of the people using second-parent adoptions are lesbian couples. One gets pregnant via donor insemination and gives birth. (Of course, lesbians adopt, too, but let’s put that to one side for now.) They want to confirm their legal status as a family. They analogize their position to that of step-parents (although the analogy is far from perfect.)
Now when they go before a judge and ask that both women be recognized as legal parents, the equities are strongly in their favor. Their family already exists in the world. The judge is not asked to authorize some abstract policy that might help some imagined lesbians. Instead, she or he sees a real family–and perhaps most significantly, a real child–and is asked to grant legal rights that will enable the child to have a more stable and secure life. Further, this happens in private, without fanfare or public scrutiny. (Adoption proceedings are not open to the public.) And there is very rarely any opposition in the courtroom.
Family law judges are used to being asked to make individualized decisions about what is best for a child. They are trained to respond to the demands of individual equity in these cases. And while there are unquestionably instances of biased judges who will never approve of lesbians being parents, there are many instances in which the attention to individual equities serves lesbian and gay families well.
All of this starkly contrasts with the heated and highly-politicized debate raging around issues like hate crimes, employment discrimination and relationship recognition. While lgbt advocates attempt to demonstrate that these matters, too, relate to real individuals and real families, they are typically presented in far more abstract form. Even lgbt issues with broad public support (see the data for hate crimes and housing discrimination on the chart) frequently remain unaddressed while the relatively far-less popular second-parent adoptions are increasingly available.
I’ve been thinking about this and what this tells us about how law relates to social change. For in the end, the change wrought by completed second-parent adoptions is substantial. Lesbian and gay families are increasingly visible and with visibility comes a measure of normalization and acceptance. This in turn brings wider acceptance and acvitism around the other (and ironically, more popular) issues.