Michigan Trial Watch

As you will know from earlier posts, there is a very interesting trial proceeding in Michigan.  It’s a challenge to laws that prohibit a same-sex couple from marrying and therefore from jointly adopting.   The plaintiffs are a lesbian couple each of whom has adopted children out of foster care.  Though they have been together for quite some time, the two women cannot adopt each other’s children.   This puts the children at risk in various ways–the non-adoptive mother is not a legal parent of the child.

What’s really interesting is that the trial judge is hearing live testimony from a series of expert witnesses of various sorts.  You can follow along via twitter coverage or blog coverage or the local (Detroit) paper.   I’m sure there will be other coverage, too, but how much can one take in.

So what to think?   You can see that some of the testimony (particularly cross-examination) is devoted to showing that all the experts approach the subject of same-sex couples and children and marriage with a point of view.   That isn’t surprising, really.    Most people probably tend to study thing they find interesting, things they care about, and very few people are completely without opinions on these topics.

Does that mean that the experts are unreliable or that their studies are invalid?  Not necessarily.  But perhaps it is something to keep in mind as one assesses their work.

The timing of studies also seems to me to be noteworthy.   With broader availability of ART and the rise of lesbian visibility, more lesbians are giving birth and raising children from birth.   Once lesbian parents were almost invariably women who had been married to men, had children and then discovered they were lesbians.   Those two populations (the older lesbian parent and the newer one) are pretty different.   Older studies will necessarily have more of the former and fewer of the latter.   Newer studies will have more of the latter and fewer of the former.   They ought to look different, shouldn’t they?

And then there is what exactly was studied.  One really has to pay attention to details.   So for example, it seems to me Professor Regnerus studied adults who, as children, had a parent who had a same-sex relationship.    This is not the same as studying children raised by lesbians.   It isn’t the same as studying lesbian families, either.

The vast majority of the population he studied in this group were, by definition, children of parents who had split up.   (All except those 2, in fact.)   And he contrasted them (because this is how he designed his study) to children of intact families where both parents were genetically related to the child.   Now lets assume children in the latter group were way more successful than children in the former group.  What can we conclude about why?   It seems to me (and I concede I am no expert) that you have too many variables here.   Maybe you could do the comparison with children who had a parent who had a different-sex relationship with someone other than their spouse?

There are, of course, methodological critiques aimed at the studies used by those who support access to marriage–they are small and perhaps there are problems with selection of samples.   But what I don’t see is a reasonably methodologically sound study that shows that children of same-sex parents do poorly.

So here, I think, is a key question.  What if we don’t know for certain that children will do well and we don’t know for certain that children will do poorly?   Then what?   MI will argue that this means you shouldn’t allow the lesbian couple to marry, but that makes little sense to me.   Will not allowing them to marry improve the lot of their children (for lesbians in MI have children)?   Will it decrease the likelihood that lesbians will have children?   Will it move any children from heterosexual households from same-sex households?

I don’t see how it will do any of these things–and this is where I think the case must fail. Even if the defendants have some dots, they don’t seem to me to connect up properly.


24 responses to “Michigan Trial Watch

  1. I do believe the if the state is going to try and offload its financial responsibilities in an adoption, that it should seek out two sources of income for the minor – that is as long as the law is as it is cutting the child off from support of their parents of origin. I don’t think it matters that they be opposite genders and I don’t think it matters if they are married. I do think it matters that both have passed the prerequisite back ground checks necessary to ensure safe placement of the child and they both obviously have. I find refusal to allow adoption by the respective partner is a waste of time and resources unless they can prove that either of them is unfit in which case all children should be removed from their custody. If any are safe then all are safe and that is the end of that. Leave sex out of it it is not important. They should not be having sex in front of the kids. Good rule of thumb for straight couples as well. If they could muster the energy raising 3 or 4 foster kids – sheesh.

  2. i think marriage is important. if they are not married to each other they are strangers, not family, so legally how can they make a family together.
    you can’t compare people who both have a genetic link to the child, their link is regardless of the state.

    • Can’t two people be in a relationship w/out being married? If so, they wouldn’t be strangers would they?

      • In many (but not necessarily all) states, two people who are in a romantic relationship but are not married are, legally speaking, strangers. What that means is that the law will treat them like any two independent people. When used in this context it doesn’t actually mean they don’t know each other. It’s a term of art, I suppose.

        It’s also used, sometimes, to describe a non-legal parent. So there’s a string of cases where a lesbian couple raise a child as a social family. One woman is legally recognized as a parent while the other is not. There are cases that not only hold that the non-legal parent isn’t entitled to any legal recognition, they also describe her as a stranger. They don’t mean that the child doesn’t know her–they mean she has no legal relationship.

        I don’t know if this is what Kisirita means by stranger or not, of course. And in our common speech I would agree with gsmwc02–members of an unmarried couple aren’t strangers. Indeed, the virtually all lesbian/gay couples raising children were for many years unmarried couples but I wouldn’t describe them as strangers.

        One other point–while I genetic link exists as a matter of fact apart from the state, the social an legal meaning of the genetic link isn’t fixed. I suppose that’s just something I’d keep in mind. Part of the reason I’ve been posting the cases involving the marital presumption is to explore contexts in which that link is/is not given meaning and what kind of meaning it is given. I’ve got one more to add to the pile, maybe later today.

        • yes, that is what i meant- a stranger from a legal perspective.
          A judge can look at it differently though if marriage is unavailable to the couple in that state.
          if marriage is available but the folks have not married, that means they have chosen to remain legal strangers. that’s their choice, so they can not expect the law to look at them differently.
          but if marriage, or a marriage-like union, is unavailable in that state, perhaps the judge can look at evidence of intent to live a married life or not.

          • (though that would be a whole lot messier, and could set a precedent for disregarding marraige for everyone…

            • Indeed, because you’d have to explore the reason why a couple did not marry. The whole problem of unmarried couples who otherwise resemble married couples is a vexing one for courts. I’ve spent two classes on the topic (not with regard to parentage) this week.

              It’s striking to me that for all the talk about abolishing the distinction between marital and non-marital children (which is what ending discrimination against illegitimate children does), states maintain the marital presumption, which of course distinguishes between marital and non-marital children.

              • but it doesn’t discriminate- the child has a right to everything another child has from both parents- if the parents are known. What law remains that discriminates?

                • A child born to a married couple automatically has two legal parents. A child born to an unmarried couple doesn’t automatically have two legal parents. That’s at least differential treatment and arguably is discriminatory.

                  • you sound like marilyn now

                  • seriously .thats the exact point marilynn keeps making over and over again.

                  • Julie, can you explain exactly what rights the child is lacking?

                  • Replying to Ki whose comment is nested beneath yours and has no infinity reply button: Its close to the exact point I want to make, not spot on but close. But the issue of discrimination against children whose bio parents are not married was made long before I ever grabbed a soap box way back in the early 70’s when they first drafted the UPA because minors whose parents were unmarried were not legally entitled to their father’s support unless he felt like it. It equalized minors rights so they all benefit form establishing paternity and having their bio parents named because of health and heritage and accountability. They all have a right to two parents and my point is that it very much matters which two people are named parent because unrelated people don’t achieve the maternity or paternity talked about in the U{A and won’t have the advantages health wise or heritage wise or accountability wise as naming the bio parent. That is why unrelated people are a safety net type of parents when the first level fails, not something the kid should be dealing with right out the gate.

              • Julie this is really brilliantly written:”It’s striking to me that for all the talk about abolishing the distinction between marital and non-marital children (which is what ending discrimination against illegitimate children does), states maintain the marital presumption, which of course distinguishes between marital and non-marital children.”
                Of course I wholeheartedly agree. I have difficulty reconciling some of your statements though because you often are very old-fashioned in your statements about the mother just getting to pick another parent of her choosing as if the child was her object to keep to herself or share with her partner as she sees fit, rather than as a free person with direct ties to both mother and father independent of their romantic connections to one another. You frequently assert a preference to exclude bio parents who want to share the responsibility for raising their child with the other bio parent and their spouse. Millions of parents cooperate despite the involvement of their spouses as step parents.

                • I don’t mean to be defending the marital presumption. I don’t think parental status should depend on whether you are married or not–and that’s exactly what the marital presumption does. What I mean to show is that the marital presumption is deeply and widely embedded in legal culture. I would as soon do without it myself. Sorry if I haven’t been clear about that.

                  • Huh well. Once again I think that sentence is written really beautifully. Then I want to ask why the preference for romantic partners? You appear to prefer people who (if not married to her) are romantically intertwined or sleeping with her at the moment that parentage issues are being tossed about. Next week it could be someone different, last week maybe different as well. Or am I just projecting this opinion on you because I think its what you’d probably think? I’m sure I can be guilty of that.

    • marriage obligates spouse to spouse. If they both adopted the same child it would be the same legally as if they were both blood related to the child

      • And it’s that obligation of spouse to spouse that is the reason husbands are obligated to support their wive’s children and wives are obligated to only have sex with their husbands and husbands only with their wives. It’s the basis of the presumption of paternity, which to tie in to the other discussion we were having, is not supposed to be a right to parent a child but rather an obligation to.

        Also, a marriage is the legal unit that reproduces and has a right to reproduce. It’s about the right to have sexual intercourse (as Lawrence v Texas affirmed non-controversially) which is significant because that is how children are created, and so it is really about the right to create people. It isn’t about caring for existing children, but in the course of caring for a spouse, it means caring for the spouse’s children too, though as a step parent. It is not a right to create children with anyone except each other, it is not supposed to be a way to adopt children the spouse has with other children. Having children with other people is not a right of marriage and should not be allowed. And it doesn’t make it OK just by naming the other person on the birth certificate or naming them a legal parent instead of the husband (or wife if she implanted another woman’s embryo), that immediately violates a child’s right to be raised by its own parents together. Though I agree that in the event that a wife gives birth to a child that is known to not be her husband’s (or her own), the birth certificate should list the genetic parents and we shouldn’t abide legal lies and hiding the truth.

        • But the obligation arises from a presumption of paternity – biological parenthood. If marriage were enough then there would be no presumption to it at all. Does everyone just freaking forget that what they presume is paternity and paternity is biological parenthood?

      • I think if MI allowed unmarried couples to jointly adopt (or even adopt serially, ending as coparents) this case would look different. But the only people who can coadopt in MI are married couples. (At least, that’s how I understand MI law to be set up.) This is actually not that uncommon.

        • I feel a reasonable argument to requiring them to be married is that they could divorce the very next day. I think there are some practical reasons for wanting married adoptive parents that are based on a child’s rights that can be answered without the expectation of marriage. I think it is reasonable to expect that there be two legal adoptive parents to replace the two legal bio parents since the rights of the child to the bio parents are severed by adoption and you don’t want to leave them in a position where legally they have access to fewer sources of support even if the sources were ineffective. I think its reasonable to expect the two to live together or that they not have room mates who are not adopting with them. I think for the state to do due diligence it has to have background checked anyone that will be living with the child being adopted. More than back ground checked I mean have run them through that whole home study gig, just to be sure that the last action of the state while the child was a ward of the state, was to place them in the care of individuals who’d proven themselves to be well suited to the child’s needs and in a documented position that the state could assume the children were safe.

  3. I’m running out to the margin here to pick up on Ki’s questions (which Marilyn also picked up on.). I do think there is an argument that the marital presumption discriminates. Children born to a married couple (whatever that means, and I’m not going into that now) automatically have two legal parents. Children born to an unmarried couple do not. They have one legal parent. So you can have otherwise identical couples as parents and the children get treated (legally) differently.

    So that’s different treatment. Is it disadvantageous–which would make it discrimination, I think. I believe it is. Imagine one of the parents died immediately after the birth of the child, leaving an estate but not will. For the child of the married couple, no problem. That child is an heir and her/his rights as an heir are protected. But for the child of the unmarried couple, if the person who died is the one not a legal parent, there is no such protection.

    Perhaps you think this a silly example, but it’s a simple one. I think there are others.

    So yes, I guess to the surprise of many, I think the marital presumption does treat children in a manner that is discriminatory and that’s a problem. The next question, of course, is what to do about it. I understand that one thing is to use genetics. If you use genetics to identify legal parents, then it makes the problem go away because now ALL children have two legal parents, though sometimes they may be hard to find.

    But for many reasons which I will not rehearse here, I don’t like using genetics. So my next question is whether there is any other way to address the discrimination. I think there are at least some other ways–and that’s what I’ve written about elsewhere. Perhaps I should pull this all together as a post? (It’s long and rather buried as a comment.). But for me the key is a system that treats those two couples I hypothesized the same way, because that is where the discrimination is.

    I’m stopping here for now but I’m happy to pull this together and make it a post in the near future.

    • It was unfair that minors could only rely on their fathers for support of they were married to their mothers. Clearly everyone has a father and there is no reason why the child should suffer just because the parents are not in love and don’t want to get married. I know you don’t want to say the bio father is the father but since everyone has one if they were all equally obligated to their offspring then their offspring would all be treated equally with regard to their rights. The moment we let the bio dad off the hook and let someone else be called father without going through an adoption you wind up with a discriminatory and unbalanced situation. Not everyone is going to have a step father to name as their father or a mother’s girlfriend to name as their other mother but they will all have a bio father and thus its a decision that is inherently fair to everyone

    • i don’t see anything discriminatory at all. i think once upon a time there were legal implications to so-called illegitimacy that went beyond not having a parent. I think that there were ways that the state was able to treat illetigimates differently, in matters unrelated to the relationship with the parent? for example citizenship.
      however if a single woman gives birth to a child whose father is unidentifiable, the state has done nothing to interfere with the relationship with the father. it may suck for the kid. or it may not. i don’t see where the discrimination is. if the parent is identified, they are still the parent whether or not they are married.
      its unless you view the state’s role as creating the parent, rather than just identifying them.

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