Article by Cynthia Godsoe
Scholars and policy makers alike have largely overlooked the significant role adoptive parenthood has played in gay family, and ultimately civic, recognition. States have been in the business of creating gay families for decades through the foster care system. This match of orphans and outlaws has resulted in tens of thousands of loving families, even in the “reddest” states. These families were key “facts on the ground” in the marriage debates. In short, adoption has functioned as a stealth path to marriage equality. Drawing on original qualitative research, this Article brings to the fore the understudied but critically important trajectory of gay foster and adoptive parenthood. It argues that a better understanding of this neglected path challenges two key assumptions underlying the marriage debates and, more broadly, family regulation. First, it challenges the conventional wisdom that marriage should come before parenthood. Recognition of same-sex adoption preceded recognition of same-sex marriage in every state. Second, it debunks the argument that current opposition to new family forms is driven by children’s interests. Marriage myopia kept policy makers’ attention off state-sanctioned parenthood, revealing their opposition to gay families to center largely on sexuality or morality.
This Article theorizes this process of on-the-ground change, highlighting three salient factors: parenthood’s private nature, its diffuse and apolitical gatekeepers, and the “stickiness” and normalizing power of extant families. It concludes by arguing that familial and civic recognition does not, and should not, come only from the status of marriage. Indeed, recent courts, including the United States Supreme Court in Obergefell v. Hodges, have explicitly praised gay adoptive parents when granting same-sex marriage. Recognition thus serves as a necessary state reward for “self-sacrifice” and model caregiving.
90 Tul. L. Rev. 311 (2015)