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Mon February 24, 2014
One reason Michigan's same-sex marriage case could be a bigger deal than you think
Tomorrow, a federal court will hear arguments in the Michigan case, DeBoer v. Snyder. The case challenges the constitutionality of the state's ban on same-sex marriage, and the ability of same-sex couples to adopt children together.
No matter how it turns out, the case for and against gay marriage will probably run along a well-trodden path.
Gay marriage is legal in 17 states, and on its way there in several others. There's not a lot of new legal theory here.
But the arguments in the adoption part of the case could chart new territory, because when the court wades in and starts making decisions about what it takes to be a good parent, it's a big deal for everyone.
Social scientists who think it damages kids to be raised by two parents of the same gender will be pitted against social scientists who think that's fine. The judge will then take a look at the evidence and make a decision based on the social science and the law.
It all seems pretty standard, except when you take a step back and realize the court will judge the parenting ability of a whole group of people. In this case, the court is willing to look at the implications of gay partnerships on the kids involved. The question is whether a court is an appropriate body to be making these kinds of decisions.
There has been controversy over the court hearing these arguments about parenting. Some of the experts who support the idea that children of gay parents have worse outcomes have done studies partly financed by the Heritage Foundation that are hotly contested in social science circles. In response, those researchers have questioned the rigor of research on the other side. Beyond the specific evidence, the fact that the court is putting itself in this role at all seems important. Courts make decisions about parenting all the time, but it's largely because a parent asks them to.
In a divorce case for example, the divorcing couple asks the court to step in and decide custody. But there is a way out in these matters. The couple can figure it out on their own. The same is true for unmarried heterosexual parents.
There is one example of the court stepping in to make these decisions without being asked by a parent: the child welfare system. Families in the child welfare system have case workers and judges watching them parent and doling out serious consequences all the time. For many children this is a critical intervention that keeps them safe. For other families it is destabilizing and almost impossible to navigate.
Families wanting to adopt children out of the child welfare system face a similar level of scrutiny where an investigation is supposed to determine if a particular home is safe for a child. Questions about how clean a home is and what kind of food is in the fridge are par for the course. But in the DeBoer case, the court is asking a much bigger question. It will examine evidence that speaks to what type of person can provide a safe home.
In the DeBoer case, the question is whether two gay parents can ever provide a home that is good enough for a child. One can imagine a similar question arising in a host of other circumstances: undocumented parents, parents who have been incarcerated, parents who work long hours, elderly parents or grandparents... the list goes on.
Big cases like these may not be on the horizon in Michigan. But when the court decides to step in and judge the ability of any class of persons to parent it can have a ripple effect on all parents and kids.
A decision in the DeBoer case is expected this spring.
**This post has been corrected. An earlier version of this post stated the case was in state court. As a reader correctly pointed out, it is of course in federal court.
Families & Community