Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, September 28, 2010

Perry on the Florida gay adoption case

Michael Perry has posted a new paper based on his recent book.  Here's an excerpt from the abstract:

On September 22, 2010, Florida’s Third District Court of Appeal – an intermediate appellate court – affirmed a ruling by a Florida trial court that a Florida statute banning adoption by homosexuals violates the Florida constitution. As it happens, the ruling by the Florida trial court was the principal subject of the Conclusion to my recent book, The Political Morality of Liberal Democracy (Cambridge Univ. Press, 2010). In the Conclusion, I wrote:

The Florida law not only violates the political morality of liberal democracy. The law – according to which, again, no one otherwise eligible to adopt under Florida law ‘may adopt if that person is a homosexual’ – is unconstitutional. The law is unconstitutional even from the perspective of Thayerian deference: Given the robust social-scientific consensus that has emerged to the effect that parenting by homosexuals is no less healthy for children – no less in the ‘best interests’ of children – than parenting by heterosexuals, Judge Lederman was right to conclude that no lawmaker could any longer plausibly think that the Florida law serves a legitimate governmental interest.

I cannot personally vouch for the "robust social-scientific consensus" regarding parenting by homosexuals, but I believe that bans on adoption by same-sex couples are problematic for an additional reason: in many cases, they amount to a refusal to recognize parent-child relationships that already exist.  Second-parent adoptions by the partner of a child's biological (and legal) parent are increasingly common.  Banning these adoptions does not end the caregiving relationship between the parent's partner and the child, but it does foreclose the stabilizing and protective role that the law can play within the relationship.


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I also am unsure about there being a "robust social-scientific consensus" that parenting by homosexuals is not bad for children but I am quite sure there is no consensus that the contrary is true.

sean s.

Posted by: sean samis | Sep 28, 2010 12:02:09 PM


Posted by: rob vischer | Sep 28, 2010 12:26:28 PM


Posted by: SCJ | Sep 28, 2010 5:51:17 PM

There is relatively little research about the impact of same sex parenting on children, and certainly no "robust social-scientific consensus."

There is however a "robust social-scientific consensus" that single, particularly fatherless, parenting is VERY bad for children.It strains credulity to believe that adding to the mix another adult who is not related to the child would solve anything. The reason that it is "problematic" when the partner of a homosexual parent wants to adopt is not any law forbidding it, but, rather, because the homosexual parent has, for whatever reason, participated in the creation of a broken home for the child. The law should discourage, not foster, these situations. It can do so by disallowing homosexual adoption. Even if there were some benefit to the child to having a homosexual parent's partner adopt (and I have no reason to believe that there is), any such benefit is massively outweighed by macro societal harm caused by a complex of laws that does not foster the upbring of children by their natural parents.

Further, what, precisely, is the significance of this purported "social science"? Can social science measure the desire of a child to know and love, and be loved by, his natural parents? Also, what if the social science shows, say, that children suffer less depression if raised by gay parents or if raised communally by hippies? Does this mean we then outlaw heterosexual marriage? If not, why are we bothering with the social science for purposes of determining whether or not to allow gay marriage?

To be honest, it disgusts me when lawyers make sophistic arguments about why the law must cannot favor and encourage the upbringing of children by their natural mother and father. Every child yearns to know and love, and be loved by, his mother and father. Proponents of gay marriage do not give a damn about this or, even more grotesquely, deny it. In order to cater to the sexual desire of adults, gay marriage runs roughshod over the interests of the child. This is one of many things that future generations will condemn us for. The generations may be of a different civilization however, if, as many thinking Catholics believe, gay marriage is a symptom of the collapse of Western Civilization.

Posted by: Dan | Sep 28, 2010 10:56:41 PM


Actually, there has been a good deal of research on the impact of same-sex and homosexual adoptions, and the results are favorable. It's not likely that allowing adoptive, same-sex parents to marry would be harmful.

Since many same-sex couples probably would NOT adopt, the significance of these studies to the legalization of same-sex marriage is probably more emotional than practical. They are a response to the claims that same-sex marriage will harm children; for which there is no evidence and a growing mound of counter-evidence.

sean s.

Posted by: sean samis | Sep 29, 2010 9:11:39 AM


Adoption, by its very nature, does not allow children to know, love, and be loved by their biological parents. If you are going to oppose adoption by same-sex couples on those grounds, you must logically oppose adoption by validly married heterosexual couples as well.

The alternatives for the vast majority of potential adoptees are not to stay with their biological parents, on the one hand, or be adopted, on the other. They are to remain in foster (or institutional) care or be adopted. I suspect you feel it would be preferable for a child to remain in foster or institutional care rather than be adopted by a same-sex couple, but be assured that there are a lot of people who disagree with you.

It seems to me much more of a problem that so many children are born outside of wedlock than that a relatively small number will be raised by same-sex couples. The percent of births to unmarried women in the United States is nearing the 40% mark, and is over 50% among African-Americans. Considering that, the fact that maybe 2% (rough guess) of children in the United States might be adopted by same-sex couples seems trivial, by comparison.

Posted by: David Nickol | Sep 29, 2010 11:41:49 AM

I apologize for the error in my post this morning at 9:11. It should have been addressed to Dan, not to SCJ. My error entirely.

sean s.

Posted by: sean samis | Sep 29, 2010 11:55:14 AM

We allow adoption to fix a broken situation; we don't however want encourage the creation of the broken situations. Gay marriage endorses the broken situation and calls it good for children. By endorsing a family model that does not require both a mother and a father, gay marriage also exacerbates phenomenon of single parenthood.


The above link is to NOM's 9th Circuit brief in the Perry case. At pages 24 through 31 the brief persuasively refutes the claim that there is a scientific consensus that gay marriage does not harm children.

Posted by: Dan | Sep 29, 2010 11:39:30 PM


“Gay marriage” makes no statement about the value of single parenthood. Same-sex marriage does not “endorse” anything except same-sex marriage. Same-sex marriage does not encourage the creation of “broken situations”. Its purpose is to “create” married couples, so it will not be the source of single parent households any more than different-sex marriage is now.

With regard to the NOM brief; like any good brief it provides the side of the story most favorable to its point of view. When all the briefs are in, then we can see which is more persuasive.

sean s.

Posted by: sean samis | Sep 30, 2010 8:06:17 PM

Sean, gay marriage says that a child does not need a father (when women run a household)...and also does not need a mother (when men run a household). Every family that lacks a mother or a father is a broken situation. Gay marriage encourages those situations.

Posted by: Dan | Sep 30, 2010 11:39:33 PM


If by “broken situation” you mean “bad for the child” then not every single-parent family is a broken situation; and a same-sex marriage with a child is not a SINGLE parent situation, there are two parents. What children need are parents who love them, teach them well, and protect them from harm. Whether that’s two men, two women, biological parents, grandparents, adoptive parents; it’s what they do, not who they are that makes or breaks a child’s life. A same-sex couple who do it right have every reason to be trusted with a child.

Divorce directly creates the same “broken” situations you mention, yet I don’t see the opponents of same-sex marriage demanding that States ban divorce. If divorce is tolerable, then same-sex marriage is tolerable. If parents have the right to decide to divorce, then non-parents have the right to decide to marry. Same-sex marriage is about same-sex couples marrying, nothing more.

sean s.

Posted by: sean samis | Oct 1, 2010 8:43:48 AM

Sean, by "broken situation" I mean a situation in which, due to the decision-making of adults, a child is deprived of either his mother or father or both.

As for divorce, I support the re-establishment of fault in the divorce law and doing everything feasible to make divorce as rare as possible. I personally would not have a problem with making divorce illegal but that is obviously an extreme that the country would never accept.

The point is we do not want (or should not want) our laws to encourage divorce or anything else that deprives a child of his mother or father. The message of gay marriage is that neither fathering nor mothering is important -- any two adults will do (but it is not clear why two is the magic number; if two is better than one, might not three or four or five or more be optimal?). That is, as kids these days say, "seriously messed up."

At this point we are going around in circles. I find it astounding that anyone would believe a child does not need both his mother and father, but many people these days do, and I can only pray that they be given the grace to see what, since time immemorial, has been recognized as an obvious truth.

Posted by: Dan | Oct 1, 2010 1:46:31 PM

We go in circles Dan because a.) whether children need their biological parents or not has nothing to do with whether same-sex marriage should be banned; and b.) children need GOOD PARENTS, **Any** good parents are better than bad biological parents.

sean s.

Posted by: sean samis | Oct 4, 2010 11:53:33 AM

"Every child yearns to know and love, and be loved by, his mother and father. Proponents of gay marriage do not give a damn about this or, even more grotesquely, deny it."

Wow, I never felt this was ever given to me being a gay son of a catholic family and all. You think that gay parents can't love their child? I hear the vatican feels gays' love is inferior. Certainly, I'm living proof that catholics can't sufficiently love their own gay children, just who are you to tell me about love?

Should your children become homosexual over the course of puberty, how is it that you say you love them when you feel their future love is evil? How is telling them all their sexual inclinations are sinful to even entertain loving them? How is telling them they can not ever have a family of their own or fall in love giving love to them? How is taking an active role to fight to prevent their equal rights loving them?

Posted by: Joseph R. Yungk | Oct 30, 2010 9:51:07 PM