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Will Marriage Equality Destroy Parental Rights? Part 1

Will Marriage Equality Destroy Parental Rights? Part 1 February 25, 2016

Many conservatives have argued, and continue to argue, that same-sex parenting is a threat to parental rights. An article by conservative writer and professor Melissa Moschella, titled To Whom Do Children Belong?, is a case in point. Moschella argues that marriage equality will lead to state-owned children. Now first of all, that is one hell of a slippery slope. But secondly, for a variety of reasons, the arguments she makes fail badly. Let’s take a look, shall we?

A crucial aspect of liberty is respect for subsidiarity—in particular, recognition that the family, based on marriage, is a pre-political community with natural and original authority over its internal affairs, especially the education and upbringing of children. Redefining marriage in law to include same-sex couples undermines the principled basis for the primacy of parental childrearing authority by obliterating the link between marriage and procreation as well as the norm of conjoined biological parenthood that conjugal marriage laws help to foster. What was once almost unanimously understood to be a normative ideal—the intact biological family composed of married mother and father with their biological children—is now culturally (and to a large extent legally) demoted to being merely one among an increasingly wide variety of family forms.

Right off the bat we have a problem. What the family looks like has varied drastically over time and from society to society. Even several hundred years ago, blended families—those with step-parents and half-siblings, etc.—-were incredibly common due to high mortality. It was also common for unmarried adult children to live in the home, and for grandparents to remain in the home. In fact, the “intact biological family composed of married mother and father with their biological children” was a post-WWII invention, brought about by new housing patterns, new living arrangements, and changing birth and death rates. And that’s without getting into other societies and time periods where children have been raised by the community rather than their parents and family units looked completely different.

I am trying to wrap my brain around how ahistorical Moschella’s view of the family is, and it hurts. She is making what ought to be a rookie mistake. Even today, it’s clear that the dethroning of the “intact biological family” has very little to do with marriage equality—or rather, the cause and effect run opposite that posited by Moschella. You can’t blame the fact that four in ten children are born out of wedlock on marriage equality. In fact, the increase in alternative family forms over the past several decades—including blended families, single parents, and grandparents raising their grandchildren—has likely contributed to our increasing societal acceptance of same-sex relationships and families.

One more thing. Note that Moschella says the intact biological family has been “demoted” to just one among many family forms. This seems odd to me, because I don’t see a demotion of the intact biological family so much as increasing acceptance of other forms along side it. I am married and my husband and I have two biological children. My daughter has a friend whose mother got pregnant in high school and is raising him with the help of her parents, and another friend who has an older step-sister who lives with her mother. That these families are more accepted than they would have been in the past has not hurt me or my family in the least. What Moschella is upset about is not the demotion of the intact biological family but rather the increasing acceptance of other family forms alongside it.

I could draw the curtains on Moschella’s post here, but I’m going to soldier on.

The view of marriage as a mere creature of the state to be redefined at will goes hand in hand with the idea that children “belong” primarily to the state, which then delegates (limited) childrearing authority to whomever the state defines as the child’s parents.

We see this trend in Canada, where the 2005 bill redefining marriage to include same-sex partnerships replaced the term “natural parent” with “legal parent” throughout Canadian federal law.

Say what? Am I to understand that Moschella doesn’t believe in adoption? Because it ought to be transparently clear that switching the term from “natural parent” to “legal parent” is about accommodating for adopted children, not about asserting that children belong to the state. In fact, the UN Convention on the Rights of the Child—which Canada has signed—states that children have the right to be raised by their biological parents unless their biological parents have chosen to give them up. No one is talking about the state taking each child at birth and then assigning them out a la The Giver.

But let’s talk about that word “limited” for a moment there. When Moschella writes about the state grants “limited” childrearing authority to whoever they define as the child’s parents, what is she talking about specifically? Does she have a problem with the fact that parents are required to send their children to school (or otherwise educate them)? Does she have a problem with the fact that the state has banned child abuse and neglect?

My point is this: It makes sense to put some limits on parental authority. There was a time when fathers could legally kill their children, no harm no foul, because their children were their property. Does Moschella want to return to those days? I doubt it. How do we determine what limits should be put on parental authority? Through the democratic process. We as a society have decided that children have a right not to be beaten, and that children have a right to adequate food and clothing, and so forth. What, really, is the alternative? To allow parents unlimited childrearing authority is to legalize child abuse and neglect.

Anyway, back to Moschella:

Similarly, in at least nineteen US states as well as the District of Columbia, same-sex partners can now both be listed as parents on a child’s birth certificate, substituting politically correct legal fiction for the implacable (hetero)sexism of biological reality.

I can see why this might sound shocking to conservatives, but Moschella is leaving out a very important point. Adopted children typically have an original birth certificate, and an amended birth certificate. The original birth certificate is sealed in the court adoption records, and the amended birth certificate shows the adoptive parents’ names. The states Moschella mentions merely allow same-sex parents to adopt a child just like opposite-sex parents. It is adoption that is “substituting politically correct legal fiction for . . . biological reality” not same-sex parenting.

According to one estimate, same-sex couples are currently raising 4% of the nation’s adopted children. If Moschella is so very concerned about making sure families are based on biology, and that birth certificates always and forever reflect biology, she would be better off combatting adoption laws than combatting marriage equality.

Anyway, back to Moschella:

We also see the state encroaching on parental authority in order to enforce the new orthodoxy regarding sexual orientation and gender identity. “Equality” requires teaching that all family forms are equally good, and public schools do this by introducing “diversity-oriented” activities and readings – including books like Mommy, Momma and Me – across the curriculum.

I wonder, would Moschella be similarly concerned if white supremacist parents were protesting against schools reading books about Martin Luther King Jr. or books with African American child protagonists? Believe me, there are parents made very very unhappy by black history month. Just how far does Moschella take parental authority, exactly? Does the parent have the right to isolate a child from everyone and everything they disagree with?

California, New Jersey and the District of Columbia have made it illegal to give counseling to minors who have sexual-identity issues that in any way discourages them from fostering those tendencies, regardless of whether or not the child would like to receive such counseling, and regardless of whether or not those issues seem to stem from earlier traumas such as sexual abuse. Similar bills are pending in fifteen other states.

There are obviously some fundamental disagreements going on here, but I do want to note that laws banning conversion therapy for minors are in a way similar to laws banning the use of faith healing on children. What does Moschella think of those laws, I wonder? Unlimited parental authority over children’s upbringing would suggest that parents have the right to deprive children of needed medical care in the same way that they would have the right to subject their children to harmful and dangerous gay conversion therapy. Is that really where Moschella wants to go?

From here Moschella talks about this awful worried Gay-Straight Alliances that recruit teens and subvert the values their parents are trying to teach them. I’m wondering if Moschella knows much about LGBT teen suicide rates, and the role of Gay-Straight Alliances can play in preventing such tragedies. Moschella is also very upset that some LGBT teens are removed from their homes by social services. Did Moschella blink an eye when Leelah Alcorn walked in front of a truck, I wonder? What does she think about the fact that nearly half of homeless youth are LGBT teens kicked of the home by their conservative parents? Is that a parent’s right, too?

Moschella returns to education, lamenting that some political theorists advocate making “diversity education” programs mandatory in all schools. I’m not going to get into everything she says in this area—it’s quite repetitive—except to note, again, that we already have diversity education in other areas like race and religion. We are a diverse society, and it’s important for children to learn to navigate that diversity. But the real problem with Moschella’s logic is that there would be a push for diversity education even without marriage equality. What she’s really upset about here isn’t marriage equality but rather the normalization of homosexuality. Now sure, the two are in some sense related, but the fact that diversity education includes transgender identities should make it obviously that marriage equality, which she has made the center of her article, is not the driving factor here.

And then there’s this:

The current German law against homeschooling originated during the Nazi era. Yet despite its questionable pedigree, this law continues to be unabashedly enforced in contemporary Germany. Even when challenged as a violation of parental rights, it was upheld by the European Court of Human Rights in Konrad v. Germany (2006) on the grounds that the state’s interest in integrating children into the larger society trumps the rights of parents—grounds that echo the arguments of political theorists like Gutmann and Macedo. As a result, parents have no choice but to send their children to state-approved schools, even if they believe the environment or curriculum to be harmful.

Let me ask two questions. First, should parents be permitted to deny their children modern medicine if they believe it is harmful? In other words, our standard cannot be “whatever the parent says goes.” We can discuss exactly where we draw the line—how much leeway parents have before they hit limits—but having limits on parental authority shouldn’t be something we even need to discuss. Second, does society as a whole have a stake in ensuring that children are not locked in their rooms for years at a time, without human contact? If yes, then we can argue about whether the German courts went too far—after all, many would argue that homeschooled children can be integrated into larger society without a problem—but we can at least grant that society does have some interest in ensuring that children have interactions with individuals outside their families.

Of course, all of this is without even discussing the rights of the child. We can talk about “society’s interest” in ensuring that children are educated, or not abused, or prepared to integrate into a diverse world, but we need to also consider the rights of the child—something Moschella doesn’t do.

But let’s skip forward and wrap up this article, shall we?

If Gutmann, Macedo, Harris-Perry and others are correct, and children do belong to the larger community at least as much as they belong to their parents, then the state’s views about the best way to raise and educate children should trump the parents’ views, and there is no principled basis for opposing the sorts of intrusive state actions described above. By treating marriage and family as a mere construct of the state, and denying the normativity of the intact biological family, the majority in Obergefell have effectively enshrined this statist vision of childrearing in our law.

But if the intact biological family is a natural pre-political community – if parents, not the state, have primary and pre-political educational authority over their children – then the family is effectively a little sovereign community within the larger political community, and, like any sovereign community, it has the right to direct its own internal affairs free from coercive external interference (except in clear cases abuse, neglect, or serious threats to public order).

Oh okay, so Moschella is okay with the state interfering in “clear” cases of abuse or neglect. I wonder how she defines “clear” exactly. What Moschella is saying is not that the government shouldn’t put limits on parents’ rights but rather that the government should only put the limits on parents rights that she is okay with. How very convenient.

Let me ask you this. What does marriage and the family look like if the state gets out of the picture? Well, it looks like it does now, except perhaps even more so, as divorce would be as simple as moving out. What does parenting look like without the state’s involvement? Parents are free to give their children to a relative or other person if they don’t want to raise them, and without the state enforcing parental rights, we might see less of a focus on parents and more of a focus on extended families and wider communities.

Moschella doesn’t want the state defining marriage, parenting, or childrearing, but what she doesn’t realize is that her ideas of what is “natural” or “normative” for marriage, parenting, and childrearing don’t hold up without the state defining them into law. In other words, she’s upset not that the state is involved but that the state is changing the rules, but she nevertheless thinks she’s upset that the state is involved. There’s something very ironic about that.

After writing this article, Moschella wrote a second article in which she further addresses adoption and child abuse. I will be addressing that article in another post, probably early next week. 

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