Courting Change: Queer Parents, Judges, and the Transformation of American Family Law

4. Right or Wrong? The Indeterminacy of Custody and Adoption Rights

83 4 Right or Wrong? The Indeterminacy of Custody and Adoption Rights The myth of rights . . . seeks to be all things to all people—or at least as many things to as many people as possible. —Stuart Scheingold1 The historical, political, and symbolic importance of legal rights, particularly in American legal culture, is well known in popular consciousness and scholarly thought. Americans have seen the First Amendment right of free speech invoked in high-profile settings anywhere from the Berkeley student protests in the sixties to the gangsterrap genre of the nineties. Miranda rights, stemming from the Due Process Clause of the Fifth Amendment, have become ubiquitous through the popularization of television crime dramas such as Law and Order and NYPD Blue. These most common examples have something in common : the right to be left alone. But what of the right to be connected? The “myth of rights” may be many things to many people, but it almost always connotes individualism—not the most intuitive fit for a necessarily communal institution such as family. Despite a recent upsurge in political dialogue centering on the family, this “fervor over the family” is often spoken of in a distant, individualistic way that does not do much to address the needs of the family unit.2 At the same time, the entirely indeterminate nature of the discourse of rights engenders a legal atmosphere in which the same rights claims made by gay and lesbian parents can be disregarded as “selfish” and “irrelevant” in one instance and held up as “fundamental” and “sacred” in the next. 84 | Right or Wrong? In this chapter, I examine the successes, failures, and intricacies of rights claims in the context of gay and lesbian parents’ custody and adoption cases, analyzing specifically the paradoxical and problematic position of rights in this family law context, which fundamentally sits at the intersection of the individual (i.e., privacy rights) and the collective (i.e., family). How is it, for instance, that the same constitutional rights (e.g., the right to privacy) can be deployed both in defense of and in opposition to a gay/lesbian parent? For that matter, how are the rights of the parent pitted against the rights, or “best interest,” of the child or against another parent? This chapter reveals the indeterminacy and therefore complexity of rights as a strategy and a discourse in the family law context, examining in depth the intersection of the collective and the individual and suggesting ways in which this very complexity and openendedness can lead to new forms and creative uses of rights for gay and lesbian families.3 The assertion of rights-based claims, since the civil “rights revolution” of the 1960s, has increasingly become the “rhetoric of choice” in moral and legal claims-making in the United States, serving both instrumental and ideological goals.4 Even those who are dubious of the efficacy of relying on traditional liberal rights claims to enact social change often acknowledge their symbolic resonance.5 The resonance of rights, not surprisingly , is particularly potent for populations that have been or continue to be deprived of them—not least, gay men and lesbians. Yet it is undeniable that “rights, like law itself, do cut both ways—serving at some times and under some circumstances to reinforce privilege and at other times to provide the cutting edge of change.”6 For example, the invocation of rights may help a gay or lesbian biological parent retain custody while simultaneously being used to deny such rights to a nonbiological parent. The 1999 Supreme Court case of Troxel v Granville and the reaction to it in the gay and lesbian community illustrate this indeterminacy : it was lauded as a victory by parents who lived in fear of having their biological or adopted children removed from their custody by a third party (as happened in the highly publicized Bottoms v Bottoms case in 1996), but it also dealt a blow to gay and lesbian nonbiological parents who did not have the opportunity or ability to formally adopt their children, holding the potential to “all but foreclose the claims of legally unrecognized lesbian mothers.”7 Indeed, the years since Troxel have shown that even ostensible gains for LGBT parenting rights can sometimes backfire against certain segments of the population. Right or Wrong? | 85 The Legal Landscape: Gay Rights, Family Rights, and the Constitution Despite the imprecision of “rights” and their...