As many of you probably know, yesterday our Governor, Christine Gregoire, signed legislation that allows same-sex couples to get married. Those opposed to the measure have until early June to gather signatures and if they gather enough, then the legislation will be on our November ballot as a referendum. Thus, no same-sex couples will be getting married here before June, and that’s only if the signature-gatherers fall short.
This seems as good a time as any to look back (broadly) on the struggles and changes that brought us to this moment. I think this might be a legitimate topic for my blog because I think it all begins with children and parents.
Long before there were many out lesbian and gay couples, there were lesbian and gay parents. I’m thinking here of women who, perhaps before realizing that they were lesbians, married and had children with their husbands. (There were also, of course, gay fathers but for reasons that will become apparent, I want to focus on lesbian mothers. I will digress to recommend the movie “Beginners” which I just saw last night.) With the rise of divorce and a growing lesbian community some of these marriages ended and sadly, some of them ended with bitter custody struggles.
There was no denying that these lesbians were mothers. And this was a time when in general courts favored custody with mothers over fathers. (This is why I have focused on lesbian mothers rather than gay fathers.) I’m sure some lesbian mothers therefore prevailed in custody battles but on numerous occasions the father argued that the mother was unfit. Unfitness was premised not on any particular conduct of the mother but on her status as a lesbian.
This argument prevailed with enough frequency to be deeply troubling. Lesbian mothers lost custody of their children–sometimes lost all contact with their children–simply because they were lesbians. For some this situation was intolerable. Unimaginable pain was inflicted on children who lost parents as well as on lesbian and gay parents who lost children (Gay fathers did not start off with the gender advantage lesbian mothers had, but they still might seek custody or visitation and were subjected to the same argument.)
A legal cause was born. And slowly, the law around lesbian and gay parents shifted. Many states declared that your competence as a parent did not depend on your status as a lesbian or gay man, but rather must depend on your actual conduct, as was the case for all other parents. (I don’t mean to suggest that this stance cured all the problems. I’ve written at some length on this topic. Fo the purposes of this post, I’m just painting with a pretty broad brush.)
At around the same time, lesbians and gay men began to consciously bring children into their same-sex relationships. Particularly for lesbians, the increasing availability of ART (which was not particularly regulated) made this possible. (Lesbians typically need only third-party sperm while gay men need a surrogate, which is more complicated and controversial.)
By the early 1990s there were a growing number of lesbians couples raising children. some were born via ART, some were adopted. Similarly, there were gay men raising children. These children were remarkably like other children. They were enrolled in schools and in soccer leagues. They visited their grandparents. They needed medical care sometimes. They had pretty ordinary lives.
Except that the law couldn’t quite manage their family structures. particularly vexing were the two-parent same-sex families. Typically, as I’ve discussed frequently, only one of the parents had legal status. This left the child and the non-legal parent quite vulnerable. The legal arguments already developed (see above) were expanded to provide some measure of protection for these families. In some states (Washington is one) lesbian and gay people gained legal recognition as parents or prospective parents (for they can adopt and foster) that is substantially similar to that granted everyone else.
This meant that when the most recent wave of agitation around access to marriage for same sex couples began (roughly 2004), there were already many two-parent same-sex families in Washington and the law in Washington offered protection and approval for these families. When parents in these families demanded the right to marry, they had all the conservative arguments about how marriage creates stable families to draw on. Those who opposed extension of the right to marry couldn’t really argue that marriage didn’t matter to families with children–because they’d spent years arguing that marriage was important, even critical for children. And it was far too late to argue that lesbian and gay people shouldn’t be parents. That train had left the station a decade or more earlier. Thus being parents paved the way for seeking access to marriage.
I’ve written recently about how the arguments about marriage and children work in favor of the marriage access people. I was moved to think of this again during the final debates here in Washington. In the end, the arguments against allowing access to marriage changed. Typically they’d been about protecting marriage as an institution (because marriage is so central to kids, of course), but it’s always been hard to explain how letting more families into the institution actually undermine it.
In the end the repeated invocations of family–particularly of parents and children–by those supporting access for marriage went unanswered. (I’m going to link to a clip one of legislator that has gone quite viral, and for good reason. It’s a striking speech.) In the final hours of debate the argument against marriage access was almost entirely about freedom of religion. The idea here is, I think, that freedom of religion gives you (or maybe society?) the freedom to discriminate and I’ll have more to say about that another time.