Wednesday, January 03, 2007

It takes a village

A court of appeal in Canada has ruled that a child can have three parents - the biological mother and father and the mother's lesbian partner. My post on the decision at Constitutionally Correct is here and the point was that the slippery slopes that were dismissed as scare tactics in the course of the same sex marriage debate have proven - again - to be quite real and very immediate.

Why should anyone care? If two parents are better than one, why wouldn't three be better than two? Part of my concern is Burkean, i.e., the notion that we should tread lightly when it comes to longstanding and fundamental social institutions. We really can't know the impact of suddenly deciding to raise kids in a way that, in most places and at most times, they have never been raised.

But only part of my concern is precautionary. I think that mothers and fathers matter and I think the exclusivity of the relationship between a child and his mother or father matters. Many adults care about and care for children, but there only a one mother and one father are likely to have that unconditional and special regard for a child that good parents have. The notions that kids are best raised by committee, that the roles of mothers and fathers are not distinct and valuable in their distinctiveness or that children are not, in the great run of cases, best off when their own mothers and fathers are together all seem quite far-fetched to me.

This is not to say that litte D.D., as the child is identified by the court, might not do fine. Some kids - and some parents - will thrive under any set of circumstances and there will always be ancectdotal evidence in support of just about any family structure. But social institutions need to be set up to encourage what works in the run of cases.

Once again, the greatest impact of reshuffling social institutions to avoid the appearance of discrimination against gays and lesbians may be on heterosexual relationships. The Christian Legal Fellowship of Canada wonders what's next:

There is no doubt that this decision will cause a whole new vista of legal issues and many new court actions as it impacts parental rights and obligations particularly in marriage breakdowns or situations where one or more members of three parent families part company. Deciding what is in the best interests of the child in those circumstances will prove extremely complex, costly and potentially chaotic.

What will prevent this ruling from having similar application to heterosexual marriges upon breakdown and subsequent remarriage? Can one or two step-parents now apply for legal status as a parent and ultimately lead to four or even six parents being recognized by the courts as having say over the child's upbringing? Will the third or fourth or fifth or sixth parent be afforded equal say? What about the child? What say will he/she have in terms of which parent or sets of parents they choose to live with?

David Frum, commenting on National Review Online, is reminded of Evelyn Waugh's comment to Nancy Mitford: "He said that because she had no understanding of the implications of her (left-wing) politics, that for her the future was always full of lovely surprises. Whereas he had to live through every catastrophe twice, once in anticipation, and then again in reality .... "


Anonymous said...

That old nemesis reality keeps getting in the way of our true happiness.

Anonymous said...

That's your analysis? A couple paragraphs of the sky is falling and see we told you? This is not the "slippery slope" issue you argued about regarding WI and marriage.
This is closer to a natural consequence of banning marriage or civil rights to gays and lesbians.

Like it or not, literally tens of thousands of children in WI alone have at least two families made up of adults who care about them and care for them. They automatically have rights and responsibilities accorded to them by virtue of marriage. Step-parents have some legal rights and responsibilities. Additionally, they have unspoken rights by being treated as legitimate caregivers for their stepchildren.

That is what this family wants to establish: two families of adults who are recognized as having the rights and responsibilities for this child.

What always struck me about your side of the argument was trotting out these ministers who would decry the state of the family in urban Milwaukee, where a huge percentage of children only have one legally responsible (not to mention emotionally and physically responsible) adult caring for them. So what is your solution to that? Take away the possibility that some children can have two legally responsible adults. Pretty damn silly and hypocritical, I think.

You should know this is not just a Canadian issue. Judges in WI are issuing similar orders declaring parentage in order to try to protect children.

Rick Esenberg said...

I am well aware of the prevalence of step families. I grew up in one and then found myself in one as an adult. My stepfather and my son's stepmother have acted with extraordinary concern for, in the first instance, my well being, and, in the second, my son's. That does not always happen. In fact, I am not sure that it is even the norm.

Having said all that, my experience confirms what the research overwhelmingly demonstrates. All those myths of the 70s - Kramer v. Kramer, the Brady Bunch and Yours, Mine and Ours - turn out to be false. No matter how wonderful and well-intentioned everyone may be, kids are best off if they can be raised by their own mothers and fathers in an intact family.

Because of that the law should be structured to encourage that and to hold it out as normative. Making marriage - and parenting - this malleable thing that can essentially be whatever the adults want it to be undercuts that purpose.

And that's the point about family breakdown in the inner city. No fault divorce and the sexual revolution (greater acceptance of cohabitation, children without marriage, etc.)were well-intentioned responses to real problems, but they have had a devastating impact in those communities where people lack the financial and, most importantly, social capital to deal with all the resulting dislocation. Sending one more message that marriage can be whatever we want it to be and then (here's where three parents come in) having to deal with the legal and social fallout from extending it to a relationship which is unlikely to approximate marriage as we have known it and in which the parties may have different needs and interests than those presented by marriage as we have known it threatens making things worse.

This, in my view, was what the debate was about. It was not about the practical needs of what are - we should be honest - the incredibly small number of gay and lesbian couples with children in which there is no involved second biological parent. Those needs can be addressed under existing law and without altering marriage or creating a same-sex equivalent.