Robert Oscar Lopez

Same-sex parenting: child abuse?

Robert Oscar Lopez
By Robert Oscar Lopez
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July 8, 2013 (The Public Discourse) - Emotional abuse can be as bad as physical abuse. Any young person who’s heard the words, “I wish you were never born,” understands that adults can inflict tremendous damage on their dependents without leaving the slightest bruise. One of the worst parts of abuse is society’s refusal to see the injustice. Emotional abuse is particularly difficult because it is invisible and therefore ripe for denial.

It is worse still to feel “abandoned” by a community that views the cruelty inside a child’s home and does nothing. When told by everyone in the vicinity that what’s happening is normal and no cause to be aggrieved (even worse, a reason to be grateful), the natural instinct of the child is to blame herself for revealing the effects of mistreatment, in addition to the primal trauma of the mistreatment itself. The situation is much worse if outsiders who intervene, such as doctors, school officials, cousins, or legal authorities, side with the guardians.

After having spent the last year involved in the debate about same-sex parenting, I can say the following with great confidence: both sides of the same-sex marriage debate are afraid of naming child abuse by same-sex couples. The issue is so raw and painful that even critics of same-sex parenting are scared to go there.

Pro-SSM people say gays have been unfairly stereotyped as child abusers, so any discussion of gay child abusers is adding to their oppression. Anti-SSM commentators generally don’t want the added fuss of showing up on the Southern Poverty Law Center’s list of homophobes. So a general pattern emerges: even when you critique same-sex parenting, you must never do so in terms that sound accusatory or equate homosexuality with child abuse.

Let’s be clear: I am not saying that same-sex parents are automatically guilty of any kind of physical, sexual, or emotional abuse to the children they raise. Nor am I saying that LGBT people are less likely to take good care of children.

What I mean is this: Even the most heroic mother in the world can’t father. So to intentionally deprive any child of her mother or father, except in cases like divorce for grave reasons or the death of a parent, is itself a form of abuse. (Though my mother raised me with the help of a lesbian partner, I do not feel I was abused, because I always knew that my mother didn’t intend for my father to divorce her.)

This holds true not only for same-sex parenting, but for any choice to parent a child in a less-than-ideal setting for a less-than-grave reason. It’s abuse, for example, for a single parent to adopt a child when many other equally good two-parent homes are available. It’s abuse for parents to divorce simply for reasons related to their own emotional happiness. It’s abuse for LGBT couples to create children through IVF and then deprive them of a mother or father.

Media Tip-Toeing Around Abuse

Two recent pieces in the Washington Post and the New York Times last month are noteworthy, because both broke the silence on the downsides of same-sex parenting but still carefully avoided the word “abuse.”

After months of presenting a whitewashed portrait of same-sex parenting, the Post finally ran a letter from Tommy Valentine of Alexandra, Virginia, warning the proponents of homosexual adoption that “A child is not a commodity to be coveted, like the car or house,” and “Even with an ‘open adoption’ arrangement with his birth mother, Kyler [the adoptee] is being deprived of the unique, irreplaceable impact of a life with a mother and father.”

Three days later the New York Times ran a self-reflective piece by Frank Litgvoet, a gay man who is raising two adopted children with his male partner, titled “The Misnomer of Motherless Parenting.” Litgvoet deserves tremendous praise for being willing to name the integral flaw in same-sex parenting, despite how promising it looks to gay adults:

Being a “motherless” child in an open adoption is not as simple as it looks, because there is a birth mother, who walks in and walks out of the lives of our children. And when she is not physically there, she is—as we know from many accounts of adult adoptees—still present in dreams, fantasies, longings and worries. . . .

When the mother walks into the lives of our kids it is mostly a wonderful experience. It is harder for them when she walks out, not only because of the sad goodbye of a beloved adult, but also because it triggers the difficult and painful question of why she walked out in the first place.

I was impressed with Litvgoet’s honesty. I do not want to criticize him too much when I am sure that some in the LGBT lobby are going to decry him for handing too much “ammunition” to the critics of same-sex parenting. It takes great courage to admit that there is a lack in his daughter’s world, which cannot be filled with political dogma or crusades against homophobia. Every child has a mother and father, and when that figure is missing, there is a narrative that is experienced as pain, loss, and at times shame.

To appreciate the heroism in Litvgoet’s breaking of silence, we must first step back and take stock of how much silence there is and how much harm it does.

Whereas single parenting and divorce have always been understood as a breakdown of the married mom and dad ideal, same-sex parenting is now being elevated as normal. Were changing views of same-sex parenting based on a natural, organic process of cultural adaptation, that would be fine, but instead views are being coercively changed through a same-sex marriage movement—most recently by Supreme Court judicial fiat.

“Normalization” demands a kind of silence from multiple parties in a child’s life. The child’s lost biological parent(s) must keep a distance or disappear to allow two gay adults to play the role of parent. Extended family must avoid asking intrusive questions and shouldn’t show any disapproval through facial expressions or gestures. Schools and community associations have to downplay their celebrations of fatherhood or motherhood (even canceling Father’s Day and Mother’s Day in favor of “Parenting Day”). The media have to engage in a massive propaganda campaign, complete with Disney productions featuring lesbian moms, to stifle any objections or worries. Nobody must challenge the gay parents’ claim that all is being done for love.

Does the silence of so many surrounding parties reverse the sense of loss? No. The child still feels the loss, but learns to remain silent about it because her loss has become a taboo, a site of repression, rather than a site for healing and reconstruction. The abuse comes full circle.

The fact that a gay father in the New York Times is willing to drop the façade and admit that there is something amiss is cause for hope. But Litvgoet’s piece in the Times backtracks by the end and encases his realization within the standard euphemisms that have made same-sex parenting advocates so frustrating over the years:

Gay parents, trained to deal with those forces, should be aware of the effect on their children. What these questions do touches on a vulnerability in the children’s identity, the identity of the motherless child. The outside world says time and again—not in a negative way, but matter-of-factly—you are not like us. We have to give our kids the chance to give voice to that vulnerability, and to acknowledge the sad and complicated feelings of being different. (And show the pride in that as well.)

On the one hand it is good to allow children the chance to “give voice” to such feelings of pain and loss, and I am proud of Litvgoet for not immediately blaming everything on prejudice. But he still cannot process his own responsibility for what is, in essence, child abuse. Like all the saccharine, smiling liberals who have driven me crazy since I was a two-year-old raised by a lesbian mom, he acknowledges the child’s pain just enough to occasion a later disappointment when he and his allies will likely refuse to rectify it. He concedes a few points about “feelings” while still asserting an unquestionable ownership: “our kids,” with a parenthetical about “pride in that.” Kids can read between the lines. They’ll know that what’s in the parenthesis is the part that the guardian is insisting on—in other words, you must be proud of what’s been done to you, even when it hurts.

Problems with Same-Sex Parenting Testimonials

In a recent heart-to-heart talk with Dawn Stefanowicz, a Canadian woman who was raised by her gay father, she and I lamented that many children of same-sex couples will never speak openly about how unfair it was to be denied a mother or father.

Dawn’s experience resembles mine: most kids of gay parents we know are struggling with sexual identity issues, recovering from emotional abuse, fighting drug addictions, or are so wounded by their childhood that they lack the stability to go public and face the onslaught from an increasingly totalitarian gay lobby, which refuses to admit that there’s anything wrong.

Mark Regnerus’s study, published a year ago, brought brief attention to adults who were coping with the aftereffects of vexed childhoods under gay parents. In the months following Regnerus’s study, Dawn and I barely had time to have a public conversation about our struggles, because the LGBT lobby immediately wanted to redirect attention to the debates that mattered to them: their “right” to marry, the fact that they were capable of “loving” children, and their sense that they were being “bullied” by Regnerus. For many kids of same-sex couples, this was a familiar experience: we only count when we make gay people look good.

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Same-sex parenting advocates have the advantage of handpicking their success stories, who are sure to receive fulsome accolades for expressing their joy at having gay parents. Those who interrogate same-sex parenting have a corresponding disadvantage. Same-sex parenting has been efficient at traumatizing the inhabitants of its dark side, rendering them frightened and mute, so nobody will ever know about it.

The existence of a venomous LGBT lobby capable of all-out emotional warfare against anybody who doubts same-sex parenting is of course a great help to the cause.

When I was in France, a pediatric psychiatrist with decades of experience told me that he has been working with a severely traumatized woman who was raised by two homosexuals. He wanted her to go public alongside me at the March 24 rally in Paris, but he dared not test her fortitude: “She is still too weak,” he told me. He could not, as her physician, permit her the risks of being a public figure.

Dawn and I are left with a dilemma: it seems we are the only two children of LGBT parents who are old enough to articulate what is wrong with same-sex parenting, independent enough to view our upbringing critically, and strong enough to deal with the LGBT lobby’s vitriol.

Cut the Charades

Like divorce and single parenting, same-sex parenting isn’t merely controversial or untested; we know that children have poorer life outcomes when they are raised outside a married biological-parent household. The data we have, thanks to the work of scholars like Regnerus, make it all the more clear that it’s abusive to force children to live without a mother or father simply to satisfy adult desires.

Moreover, anyone who supports same-sex parenting in spite of these data is complicit in child abuse. This is true, for example, of pediatricians, sociologists, and psychologists who justify same-sex parenting by pointing to vague metrics like “emotional well-being” or “willingness to communicate.”

That they hide their complicity behind their PhDs makes complicity even less excusable.

Doug Mainwaring and I have been working on ways to distinguish between gay parents and same-sex parenting. A gay parent in a male-female marriage or a single gay parent is better, in our view, than a same-sex couple raising a child, because the elements of abuse are missing in the first two scenarios.

In the first scenario, the child has a mom and a dad even if one of them is gay. In the second scenario, there is no charade of replacement, no pretenses that one or two unrelated homosexual parents are to receive the equivalent love and respect that a child would show to his mom and dad. The coercion involved in “same-sex parenting,” and the silencing of any recognition that a loss has occurred, is elemental in making same-sex parenting homes abusive.

Worst of all is a same-sex parenting home that arose because two homosexuals contrived the situation knowingly, in order to experience parenting. These are cases in which divorce was initiated by a gay spouse, with the explicit goal of setting up a new gay parenting household, and then custody was transferred (often in an ugly family court process). Or where lesbians went to a sperm bank. Or where two homosexuals began a lifelong relationship with the intent of adopting and then sought adoption on-demand. Or worst of all, two gay men engaged in a surrogacy contract with a woman who sold them her baby.

Many gay parenting advocates say these are more noble scenarios since they “wanted” the child, but they are wrong. They imposed their vision ruthlessly on a helpless being and then extorted gratitude. The false equivalency used in order to make the child “love” a second parent of the same sex is coerced and injurious.

In the household irreversibly alienated from constitutive rituals like Father’s Day and Mother’s Day, it is abusive to tell the child it was all for her own good and she shouldn’t listen to her own feelings, nor her peers, neighbors, or any moral authorities on TV who praise motherhood or fatherhood.

It is abusive to tell a child, “We are your moms” or “we are your dads,” and then expect the child never to feel the loss of such important icons, in addition to the injury of having been severed from at least one, and possibly both, biological parents—not because it was necessary, but because the two adults insisted on the arrangement. The lessons children learn from this undermine selfhood: might makes right, little people are subject to the whims of self-serving parents, and powerful people can impose “love” on weaker beings with money or political influence over adoption agencies, family courts, sperm banks, and surrogate mothers.

None of these problems would arise if we lived in a world where gay people saw children not as a commodity for purchase but rather as an obligation requiring sacrifices (i.e., you give up your gay partner instead of making your kid give up a parent of the opposite sex, because you’re the adult.)

When the child begins to ask, “why don’t I have a mom?” or “why don’t I have a dad?” the abuse grows, for the gay “parents” will likely respond with an answer that protects them from criticism but disallows the child’s recognition of hurt feelings.

Consider what Rob Watson wrote in the Huffington Post in an open letter to Justice Anthony Kennedy:

If you come, you will meet my 10-year-old sons, who will likely impress you, given how personable, articulate, polite and bright they are. You might ask, as many people we meet do, if they are twins. The answer will be, “They are ‘almost-twins’: Their birthdays are four months apart.” That will bring a “huh, come again?” look, and I will explain how I adopted them as babies from different drug-addicted birth mothers through foster care.

If Watson’s standard routine in explaining his situation to strangers is to highlight the fact that his two ten-year-olds came from “drug-addicted birth mothers,” it is possible that he has been explaining it this way to his own sons for years. He wouldn’t be the first gay dad I’ve heard say to an adoptee, “you don’t have a mom because your moms were drug addicts and I was the only one who wanted you.” That’s emotional abuse at its worst.

Watson’s glib narrative is reflective of the larger genre of same-sex parenting manifestoes. For a movement like the LGBT lobby, which grew out of a desire for openness, the silences imposed on children of same-sex couples are criminally hypocritical. Kids have a clear, specific script to follow when outsiders ask where they come from—don’t mention the sperm bank, don’t mention the woman who sold you, don’t talk about the ugly divorce from five years ago, don’t …. Just don’t talk. Just shut up and smile. Say you like this. Otherwise, bad things will happen. You’ll go back to being an unloved being with nobody willing to put up with you any more.

After a year of being in this game, I have grown wary of strategy. I don’t have a silver bullet tactic for suddenly making low-information Americans aware that all the same-sex parenting propaganda—and more broadly our growing acceptance of non-traditional parenting—is really a cover for systematic abuse. My hunch, however, is that it might be time simply to drop all the masks, put away our strategies, and just state the uncensored truth.

If you think child abuse is wrong, then say so.

Reprinted with permission from The Public Discourse

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Banning reparative therapy for gay minors is ‘a form of child abuse’: former homosexual (Video)

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By Ben Johnson

SPRINGFIELD, IL, February 27, 2015 (LifeSiteNews.com) – Not only would Illinois legislators not be protecting children by enacting a ban on “conversion therapy,” they would be engaging in “a form of child abuse,” according to a man who left the homosexual lifestyle three decades ago.

Stephen Black of the Restored Hope Network told the Illinois Family Institute that reparative therapy helps minors who struggle with unwanted same-sex attraction.

While opponents have said that psychological counseling to reduce sexual attraction violates truth in advertising laws and borders on torture, Black described it as little more than “pastoral care for people who want to come out of homosexuality.”

The Conversion Therapy Prohibition Act (H.B. 217), introduced by Democratic State Rep. Kelly Cassidy, would ban such therapy for minors, subjecting medical professionals to discipline by the licensing or medical review board.

"It would be tragic not to allow someone to have self-determination," Black said. "It's a form of child abuse."

“You've got a teenager...[who] actually believes the Bible. He finds himself same-sex attracted,” Black said. “In the Bible...the loving thing to do is to repent, to turn away from this type of lifestyle.”

“Now, this legislation is going to come in and keep him from getting the help he wants,” Black said.

He added that such legislation undermines the family, which may wish to steer a child away from homosexuality – with its attendant higher risk of STDs, depression, and suicide.

Legislation such as H.B. 217 says that “government knows best,” according to Black, and “conflicts with religious liberties.”

He finds confirmation in an unlikely source – far-Left Democratic Congressman Ted Lieu of California. As a state senator, Lieu introduced the ban on reparative therapy, signed into law by Gov. Jerry Brown. Lieu said at the time, “The attack on parental rights is exactly the whole point of the bill.” Barack Obama endorsed Lieu in his successful race for U.S. Congress in 2014.

Stephen Black says he has benefited from reparative therapy himself. After converting to Christianity, he says he eventually left behind his homosexual attraction.

Today, he's a proud grandpa. And he says other teens should have that same opportunity.

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He knows society is quickly turning its back on traditional moral stands, but he and Restored Hope Network continue to uphold the Biblical standard on all sexual activity outside heterosexual marriage, however unpopular his view.

“It's not politically correct, but it's Biblically correct,” Black said.

The Illinois House rejected a similar ban last April. IFI and Concerned Women for America, among others, have asked citizens to urge elected officials to oppose the bill.  

(Story continues following video.)

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Mark Regnerus

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New research on same-sex households reveals kids do best with mom and dad

Mark Regnerus
By Mark Regnerus

February 27, 2015 (ThePublicDiscourse.com) -- A new study published in the February 2015 issue of the British Journal of Education, Society, and Behavioural Science appears to be the largest yet on the matter of same-sex households and children’s emotional outcomes. It analyzed 512 children of same-sex parents, drawn from a pool of over 207,000 respondents who participated in the (US) National Health Interview Survey (NHIS) at some point between 1997 and 2013.

Results reveal that, on eight out of twelve psychometric measures, the risk of clinical emotional problems, developmental problems, or use of mental health treatment services is nearly double among those with same-sex parents when contrasted with children of opposite-sex parents. The estimate of serious child emotional problems in children with same-sex parents is 17 percent, compared with 7 percent among opposite-sex parents, after adjusting for age, race, gender, and parent’s education and income. Rates of ADHD were higher as well—15.5 compared to 7.1 percent. The same is true for learning disabilities: 14.1 vs. 8 percent.

The study’s author, sociologist Paul Sullins, assessed a variety of different hypotheses about the differences, including comparative residential stability, experience of stigma or bullying, parental emotional problems (6.1 percent among same-sex parents vs. 3.4 percent among opposite-sex ones), and biological attachment. Each of these factors predictably aggravated children’s emotional health, but only the last of these—biological parentage—accounted for nearly all of the variation in emotional problems. While adopted children are at higher risk of emotional problems overall, being adopted did not account for the differences between children in same-sex and opposite-sex households. It’s also worth noting that while being bullied clearly aggravates emotional health, there was no difference in self-reported experience of having been bullied between the children of same-sex and opposite-sex parents.

Vocal critics, soon to emerge, will likely home in on the explanatory mechanism—the fact that two mothers or two fathers can’t possibly both enjoy a biological connection to a child—in suggesting the results of the study reveal nothing of value about same-sex households with children. On the contrary, the study reveals a great deal. Namely, there is no equivalent replacement for the enduring gift to a child that a married biological mother and father offer. It’s no guarantee of success. It’s not always possible. But the odds of emotional struggle at least double without it. Some critics might attribute the emotional health differences to the realities of “adoption by strangers,” but the vast majority of same-sex couples in the NHIS exhibited one parent with a biological relationship with the child.

Even research on “planned” same-sex families—those created using assisted reproductive technology (ART)—reveals the significance of biological ties. Sullins notes such studies

have long recognized that the lack of conjoined biological ties creates unique difficulties and relational stresses. The birth and non-birth mother . . . are subject to competition, rivalry, and jealousy regarding conception and mothering roles that are never faced by conceiving opposite-sex couples, and which, for the children involved, can result in anxiety over their security and identity.

The population-based study pooled over 2,700 same-sex couples, defined as “those persons whose reported spouse or cohabiting partner was of the same sex as themselves.” This is a measure similar to that employed in the US Census, but it has the advantage of clarity about the sexual or romantic nature of the partnership (being sure to exclude those who are simply same-sex roommates). Among these, 582 had children under 18 in the household. A battery of questions was completed by 512 of them.

Lies, Damned Lies, and Statistics

This is not the first time the NHIS data have been used to analyze same-sex households and child health. A manuscript presented at the 2014 annual meeting of the Population Association of America assessed the same data. Curiously, that manuscript overlooked all emotional health outcomes. Instead, the authors inquired only into a solitary, parent-reported measure of their “perception of the child’s overall health,” a physical well-being proxy that varies only modestly across household types. Hence, the authors readily concluded “no differences.”

I’m not surprised.

This juxtaposition provides a window into the state of the social science of same-sex households with children. Null findings are preferred—and arguably sought—by most scholars and journal editors. Indeed, study results seem to vary by author, not by dataset. It is largely a different approach to the presentation of data that distinguishes those population-based studies hailed by many as proof of “no differences” from those studies denounced by the same people as “junk science.”

In fact, population-based surveys of same-sex households with children all tend to reveal the same thing, regardless of the data source. It’s a testimony to the virtues of random sampling and the vices of relying on nonrandom samples, which Sullins argues—in another published study—fosters “a strong bias resulting in false positive outcomes . . . in recruited samples of same-sex parents.” He’s right. Published research employing the New Family Structures Study (NFSS), the ECLS (Early Childhood Longitudinal Study), the US Census(ACS), the Canadian Census, and now the NHIS all reveal a comparable basic narrative, namely, that children who grow up with a married mother and father fare best at face value.

The real disagreement is seldom over what the data reveal. It’s how scholars present and interpret the data that differs profoundly. You can make the children of same-sex households appear to fare fine (if not better), on average, if you control for a series of documented factors more apt to plague same-sex relationships and households: relationship instability, residential instability, health and emotional challenges, greater economic struggle (among female couples), and—perhaps most significantly—the lack of two biological connections to the child. If you control for these, you will indeed find “no differences” left over. Doing this gives the impression that “the kids are fine” at a time when it is politically expedient to do so.

This analytic tendency reflects a common pattern in social science research to search for ‘‘independent’’ effects of variables, thereby overlooking—or perhaps ignoring—the pathways that explain how social phenomena actually operate in the real world. By way of a helpful comparison, I can state with confidence that after controlling for home ownership, residential instability, single parenthood, and neighborhood employment levels, there is no association between household poverty and child educational achievement. But it would be misleading to say this unless I made it clear that these were the pathways by which poverty hurts educational futures—because we know it does.

The academy so privileges arguments in favor of same-sex marriage and parenting that every view other than resounding support—including research conclusions—has been formally or informally scolded. I should know. The explosive reaction to my 2012 research about parental same-sex relationships and child outcomes demonstrates that far more is at work than seeking answers to empirical research questions. Such reactions call into question thepurpose and relevance of social science. Indeed, at least one sociologist holds that social science is designed “to identify and understand the various underlying causal mechanisms that produce identifiable outcomes and events of interest.” That this has not been the case with the study of same-sex households raises a more basic question.

Is the point of social science to win political arguments? Or is its purpose to better understand social reality?

What to Expect from a Topic Emerging from Its Infancy

One byproduct of better data—or perhaps the smell of impending victory by proponents of civil same-sex marriage in America—may be greater intellectual honesty about such relationships. Indeed, researchers have admitted the tendency to downplay “any inequities between same-sex partners . . . in part because of the dominant mantra that same-sex couples are more equal than different sex couples.”

It’s not the only consequential admission. Scholars are increasingly—and openly—squabbling over the nature of sexual orientation itself, signaling the comparative infancy of the social science here. Moreover, there’s a good deal of sexual identity switching being reported among young adults, a fact that does not comport with a honed narrative of immutability.

So should scholars trust self-reported sexual orientations? If people report something different a few years later, should we attribute this to their malleable sexuality or consider them heterosexual “jokesters” bent on messing with survey administrators? It is profoundly ironic that social scientists make strong social constructionist arguments about nearly everything except sexual orientation.

Stanford demographer Michael Rosenfeld’s survey project How Couples Meet and Stay Together (HCMST) reveals that while only 3 percent of heterosexual married persons reported being “at least sometimes attracted” to persons of a gender other than the gender of their current partner in the past year, the same was true of 20 percent of men in same-sex relationships and 33 percent of women in same-sex relationships. While the malleability of self-identified lesbian women is now taken for granted among social scientists of sexuality, the one-in-five figure among men in gay relationships is higher than most would guess.

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In keeping with the data, expect those robust legal arguments leaning on the immutability of sexual orientation to bleed out within the next five years. Indeed, sociologists have never been fans of such biological essentialism, but have kept their mouths shut out of a sense of political duty to a movement they helped birth. No more.

Social scientists will soon wrestle with, rather than overlook, the elevated levels of poverty among well-educated lesbian women in America (as seen in the ACS, NFSS, NHIS, and HCMST). Until now, scholars predictably elected to employ income as a control variable in their studies of child and adult life outcomes, enabling them to avoid confronting the reasons for the unprecedented negative association of education with income among the population of same-sex female couples. Here again, it’s not been about understanding but about winning political battles.

We will also learn much more about the relationship stability distinctions that are common in the data between gay and straight parents. Unpublished research exploring the stability rates of same-sex and opposite-sex couples using data from yet more population-based surveys finds that claims about thecomparability of same-sex and heterosexual couple stability (again, after a series of controls) are actually limited to couples without children. For couples with children, the dissolution rate for same-sex couples is more than double that of heterosexual couples. What remains unknown yet is whether this difference is an artifact that will disappear with legal marriage rights. I doubt it, given that same-sex relationships are distinctive in other ways, too. But it’s an empirical question.

As it turns out, the NFSS was not unique. It was simply more transparent than most datasets and offered a clearer glimpse into the messy reality of many Americans’ household histories. It did the work social science was intended to do—to richly describe and illuminate—but in so doing invited unprecedented hostility.

On a Thursday morning in late June 2015, Americans will be treated to the Court’s decision about altering an institution as old as recorded human history. But one thing that day will not change is the portrait of same-sex households with children. After a series of population-based data-collection projects, we know what that looks like: a clear step down, on average, from households that unite children with their own mother and father.

Biology matters—as new research released this week confirms—and no amount of legislation, litigation, or cheerleading can alter that. Whether the high court will elect to legally sever the rights of children to the security and benefits of their mother's and father’s home is anyone’s guess.

Reprinted with permission from The Witherspoon Institute. 

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Michael Stokes Paulsen

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The case for imposing gay ‘marriage’ is remarkably similar to that for slavery. But can the GOP produce a new Abe Lincoln?

Michael Stokes Paulsen
By Michael Stokes Paulsen

February 27, 2015 (ThePublicDiscourse.com) -- No, of course Old Abe never said a lick about same-sex marriage. The idea would have been unheard of in the 1850s—or even the 1950s. The issue of Lincoln’s day was slavery—in particular, the extension of that peculiar institution into federal territories and even into free states. But in connection with the slavery issue, Lincoln had plenty to say about the use and abuse of judicial authority to propagate social policy and about the dangers of judges usurping legislative authority. The man whose birth we honored two weeks ago thus spoke, indirectly, to one of the central controversies of our own era, and to a case pending before the Supreme Court right now.

Lincoln’s specific concern was the expansion of slavery into federal territories, mandated by the Supreme Court’s horrendous decision in Dred Scott v. Sandford, in 1857. Lincoln warned of the prospect of a “second Dred Scott” decision following on the heels of the first, mandating the extension of slavery into (formerly) “free” states where the institution of slavery was banned, like Illinois. “We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free,” Lincoln intoned, in the famous House Divided speech launching his (unsuccessful) 1858 campaign for Senate, “and we shall awake to the reality, instead, that the Supreme Court has made Illinois slave State.”

The logic of the Dred Scott case, Lincoln argued, would seem to imply that no state could deny recognition to the property rights of slaveholders coming from another state. Dred Scott had held that a right to own slave property, conferred by the laws of a slave state, bound the federal government, in administering federal territories that had not yet become states. Federal law could not ban slavery in the territories, for that would unfairly and unconstitutionally deprive slave-owners of a benefit they had possessed under state law, and thus deny them “due process of law.”

However convoluted and unpersuasive the Court’s reasoning, Lincoln recognized the implications of its logic: if the federal government had to recognize slavery as a result of some states’ laws, how could a free state (like Illinois) deny recognition to slave status conferred by a slave state’s laws (like Missouri’s)?

A House Divided

Lincoln warned that politicians and judges, like builders working according to a common plan, were preparing the framework to make slavery the uniform national rule: “Put that and that together, and we have a nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a state to exclude slavery within its limits.” And once that had happened, a state could scarcely deny to all citizens of a state the same “constitutional right” to the institution of slavery that it had to recognize to newcomers or travelers from slave states. A case presenting exactly these issues was kicking around in the New York courts, and seemed at the time destined to make it to the US Supreme Court, presenting the perfect opportunity for such a second Dred Scott.

“A house divided against itself cannot stand,” Lincoln said, quoting Jesus. Lincoln did not expect the house to fall, but he did expect that “it will cease to be divided. It will become all one thing, or all the other.” The only way to prevent slavery from becoming the national rule was to resist the decision of the Supreme Court and to seek to prevent its extension—to “meet and overthrow the power of” the “political dynasty” that was seeking to extend slavery to the entire nation.

Lincoln lost that Senate campaign to the incumbent Stephen Douglas, but then beat Douglas in a rematch two years later, this time for the presidency. The rest, as they say, is history: southern states revolted against what they considered a revolting, lawlessly antislavery president; Lincoln considered it his constitutional duty to maintain the Union, faithfully execute the laws, and put down the rebellion; and during a four-year bloody Civil War that tragically claimed 620,000 lives—more than all of America’s other wars combined—Lincoln found it necessary to proclaim the emancipation of slaves held in the states in rebellion. The Thirteenth Amendment, abolishing slavery throughout the nation, was proposed by Congress 150 years ago this month, and Lee surrendered to Grant 150 years ago this April. Barely a week after that, Lincoln was killed by an assassin’s bullet—having seen, but never entered, the promised land of a nation free of slavery.

Parallels between Dred Scott and Windsor

So what does all this have to do with same-sex marriage? A lot. Two years ago, in the contrived test case of Windsor v. United States, a bare majority of Supreme Court justices held that a legal status conferred by state law had to be recognized within the federal sphere. The court held that to deny such a status, as federal law did, violated the Due Process Clause of the Fifth Amendment.

In legal form and substance, the decisions in Windsor and Dred Scott are surprisingly parallel. Windsor involved a same-sex marriage that was recognized by the state of New York but not recognized by the federal government due to the Defense of Marriage Act (DOMA). The Court held that DOMA denied “due process of law” because it withheld federal recognition to a state-law legal status. That is exactly the same thing the Court did in Dred Scott. Instead of marriage, Dred Scott involved the status of slavery, which was recognized by the state of Missouri, but not by federal law in federal territory. Scott’s master, a captain in the army, had taken Scott to Fort Snelling, in the free federal territory of present-day Minnesota. The federal Missouri Compromise of 1820 banned the status of slavery in federal territory north of a designated line. Dred Scott held that the Missouri Compromise denied “due process of law” because it withheld federal recognition to a state-law legal status. That is just what Windsor did with respect to DOMA.

In both Dred Scott and Windsor, the Court’s legal analysis was transparently result-oriented: the justices wanted a particular result, and manipulated the law to reach the outcome they thought preferable as a social-policy matter. In both cases, the majority’s “reasoning” wanders aimlessly before finally settling into the same oft-discredited judicial invention of “substantive due process”—the idea that it is simply morally wrong, or mean, for a democracy to deny a legal right or status conferred under the law of a different jurisdiction. In both cases, the majority opinions were subject to devastating dissents, and they produced greatly divided public reaction. It is hard to avoid the conclusion that Dred Scott and Windsor are two peas from the same judicial-activist pod.

A Second Windsor?

Lincoln warned that there could be a “Second Dred Scott” making slavery national. “Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome or unwelcome, such decision is probably coming.”

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Could there be a “Second Windsor” making same-sex marriage national?

Quite possibly yes. A case is now pending before the Supreme Court asking whether four states—Ohio, Michigan, Kentucky, and Tennessee—acted unconstitutionally by not recognizing the status of same-sex marriages under their laws. Some of the plaintiffs are same-sex partners who were married under the laws of other states before moving to a state not recognizing such status. Other plaintiffs seek simply to be married in their home states, the laws of which limit marriage to opposite-sex couples.

Just as with Dred Scott and slavery, the logic of Windsor does not quite require extension to invalidate the laws of every state that denies same-sex marriage status. But an argument will be made that it does. The reasoning of Windsor is that it was gratuitously and indefensibly mean, and therefore unconstitutional, for the federal government to deny recognition to a same-sex marriage recognized under state law. Just as Lincoln asked with respect to Dred Scott, how likely is it the Court will say that a state can then deny to other state’s citizens, or even to its own, the status of same-sex marriage? “Put that and that together,” as Lincoln said, “and we have another nice little niche” for the next Supreme Court decision.

Same-sex marriage is obviously an entirely different social institution than slavery. Reasonable and honorable people today disagree about whether the traditional view of marriage as a conjugal and intrinsically male-female union should be abandoned for an understanding of marriage as embracing any sexual-romantic bond into which two (or more) people might enter. Nobody today disagrees about slavery.

But that is not the point. The point is that, in the structure and logic of the legal arguments made for judicial imposition of an across-the-board national rule requiring every state to accept the institutions, the two situations appear remarkably similar.

If recent lower court opinions on marriage are any guide, the judicial winds may be blowing on the marriage question in the same direction Lincoln seemed to perceive them blowing on the question of extending slavery into northern states by judicial decree. (Lincoln’s prediction probably would have proved right had he not been elected president.) As with slavery in the 1850s, so too with same-sex marriage in 2015: the house very likely will soon cease to be divided. I wouldn’t want to say it’s inevitable, but it is certainly possible that a Second Windsor is coming.

Will the Republican Party produce another Lincoln to stand against it?

Reprinted with permission from The Witherspoon Institute

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