—Carlos A. Ball
A pioneering federal lawsuit filed earlier this month by the ACLU in North Carolina encapsulates both the progress and the challenges faced by LGBT parents in our country. As I explain in my book The Right to Be Parents, the nation has come a long way in recognizing that parenting is not an exclusively heterosexual endeavor. As recently as thirty years ago, becoming a parent, much like marrying someone of the same sex, was simply not within the realm of the possible for most openly lesbian, gay, bisexual, and transgender individuals. Today there are tens of thousands of proud and open LGBT parents experiencing the joys and challenges of raising children.
Some of the laws of even relatively conservative states like North Carolina reflect the growing acceptance of LGBT parenting. Foster care regulations in North Carolina, for example, prohibit child welfare officials from taking sexual orientation into account in deciding which homes are suitable for foster parenting. In addition, the North Carolina Supreme Court in 2010 held that a lesbian woman was entitled to seek custody and visitation of the child she was raising with the biological mother after the couple’s relationship dissolved. The court appropriately recognized that an unmarried individual who participates in the decision to have a child, and who helps care for that child as a parent, is entitled to have continued contact with the child even if her relationship with the biological parent ends.
In its ruling, however, the court also held that someone in that situation is not entitled to adopt the child without first terminating the legal parent’s rights. In contrast, married heterosexuals are permitted to adopt their spouses’ children without first terminating the spouses’ parental rights. The result is that North Carolina law does not fully recognize both members of same-sex couples as legal parents, even if they have shared parenting responsibilities for years. It is this unequal aspect of North Carolina parenting law that led to the ACLU’s constitutional challenge.
There are several aspects of this lawsuit that are potentially ground-breaking. This is the first time that a ban on second-parent adoption has been challenged in court on federal constitutional grounds. Federal courts in the last few years have repeatedly questioned the constitutionality of laws — like the Defense of Marriage Act (DOMA) and the now repealed Don’t Ask, Don’t Tell statute — that treat individuals differently because of their sexual orientation. There is a good chance that the federal courts will also be skeptical of the notion that whether children have two legal parents should depend on the adults’ sexual orientation.
The ACLU lawsuit is also important because it raises a constitutional equality challenge on behalf of not only the lesbians and gay men who are not permitted to adopt under North Carolina law, but also the children involved. As I explain in my book, what is ultimately at stake in LGBT parenting cases is not the rights of adults, but is instead the well-being of children. It should be obvious that legally denying an entire category of children the opportunity to have two legal parents undermines rather than promotes their best interests.
Lawsuits like the one filed by the ACLU in North Carolina are playing crucial roles in protecting the interests of the thousands of children being raised by LGBT individuals across the country. It is only a matter of time before the full and equal legal recognition of LGBT families becomes a reality.
Carlos A. Ball is Professor of Law and Judge Frederick Lacey Scholar at Rutgers University (Newark) and the author of The Right to Be Parents: LGBT Families and the Transformation of Parenthood, which was published by NYU Press last month.
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