Dr. Strangebigot (Or, “How I Learned To Stop Worrying And Loathe The Family Council”)

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    I’m not sure how much overlap there is between the readers of this blog and the readers of Progressive Arkansas, so it’s entirely possible that you missed my recent point-counterpoint with David Cox of the Family Council regarding adoption and foster parenting by unmarried, cohabitating couples.

    You can read my side of the debate at the above link, so I won’t reprint it here. However, I did want to respond to some parts of Cox’s argument, which I found to be unsupported, disingenuous, and often ridiculous. (Full disclosure: I have an intense dislike for the Family Council, so I am probably a little more critical of their motives than I would be of a different group. I do not apologize for this, however; it is Jerry Cox and Family Council’s own statements and actions that led me to this position.)

    All blockquotes herein are from David Cox’s article.

    While adults are free to cohabit with one another in the state of Arkansas, the fact remains that there is no legal “right” to adopt or foster a child.

    Nor is anyone claiming that there is. Not even the Circuit Court order that found Act 1 unconstitutional said that there was a right to adopt.2 There is, however, a right of privacy in the Arkansas Constitution and an inherent right of privacy in the U.S. Constitution, as explained in Lawrence and Griswold.

    MORE IMPORTANTLY, however, the issue here is not about whether there is a right to adopt; the issue is whether it is in the best interest of the children in need of adoption/fostering to categorically ban cohabitating couples. No one is suggesting that every cohabitating couple would be fit to adopt/foster, just as no one would suggest that for every married couple.

    Where adoption and foster care are concerned, the rights of the child come before anyone else’s rights.

    A. You just said that there was no right to adopt, so focusing on the rights of children in this context is not putting their rights ahead of anyone else’s. Let’s at least attempt to stay logically consistent here, ok?

    B.Your statement, in a broad sense, is correct. That still does not mean that adoption or foster-parenting by cohabiting couples somehow infringes the children’s rights.

    You cannot yell “Fire!” in a crowded theater under your right to free speech. The reason is that while you have a right to speak freely, the others in that theater have a right to safety and well-being; if exercising your right to free speech conflicts with their right to safety, their rights supersede yours.

    […]We all have the right to meet with others, hold rallies, and even protest publicly. However, the law does not recognize a “right to riot”. The reason is that rioting endangers the rights of other people—such as life, safety, property, and so on[.]

    Adoptive and foster children, likewise, have a right to safety and well-being.

    In the span of three paragraphs, Cox attempts to link yelling “Fire!” in a crowded theater, inciting a riot, and adoption by unmarried couples. In addition to being needlessly and dishonestly hyperbolic, Cox’s analogy fails on its own lack of merit.

    Here’s what I mean. The courts have stated explicitly that, in imposing limits on otherwise lawful constitutionally protected behavior, the limits must be very narrowly drawn and affect only the specific actions necessary to protect people. That is why the fact that I am not allowed to yell “Fire!” in a crowded theater does not mean that we ban crowded theaters or that we ban all talking in crowded theater; I can yell “Tuba!” or “Onomatopoeia!” or anything that is unlikely to cause a stampede to the door and endanger people in the process.

    Likewise, the fact that I cannot incite a riot does not mean that we ban all public assemblies or even that we ban people from loudly voicing displeasure or anger en masse so long as the actions of the group do not suggest a clear and present danger to the safety the group or to the public generally. In fact, even the chance that a protest could turn violent is not enough, generally speaking, to disband an otherwise lawful assembly.

    Yet, despite the fact that he analogizes to these very narrow limitations on speech and assembly, Cox is not proposing a similar narrowly tailored protection for children. Instead, he makes the ridiculous leap that every single placement with a cohabitating couple is as detrimental to the safety of the adopted child as yelling “Fire!” is to the people in a crowded theater.

    [T]he state has a responsibility to make sure these children are placed with the very best homes possible—after all, if the goal were simply to place the children in a home, they could have been left in the home from which they were removed.

    I trust everyone sees the logical fallacies in this statement. It’s a strawman, inasmuch as no one is suggest that the goal is “simply to place the children in a home.” It’s also begging the question, in that Cox essentially argues: (1) Cohabitating homes cannot be the best homes for adoption/fostering; (2) the state has a duty to put children in the best home; (3) therefore, the state cannot put children in cohabitating homes. That Cox includes the red herring about leaving kids in the homes they were removed from only adds to the ridiculousness of his assertion.

    The Department of Human Services considers everything from the square footage of your home and the number of windows in the child’s bedroom to your annual salary before deciding whether or not to place a foster child in your care. They do that because they want to make sure children are getting the very best home. If the state is going to take those things into consideration, it certainly needs to examine the social structure of the home as well.

    So you are saying that make adoption and fostering decisions on a case-by-case basis, considering all the factors?  Got it.

    According to a June 2005 study by the Alabama Policy Institute entitled Family Matters: Family Structure and Child Outcomes…

    At the risk of being accused of poisoning the well, I note that API’s mission statement includes “the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society” and “Those founding fathers knew that we are a nation of men and women created equal in the sight of God, and that our Creator endows every one of us with unalienable rights-rights for which we must take responsibility and be willing to defend.“ Also, according to the Family Research Council, “API has been at the forefront of social policy such as strengthening the laws against abuse of the elderly and children, promoting legislation which values life, and advocating policy that protects marriage.”

    You’ll have to forgive me if I question their impartiality in matters dealing with non-traditional families.

    As for that study cited by Cox, you can read it here. You’ll notice, first, that much of the beginning of the study is a disclaimer about how hard it is to gather reliable or consistent data and how this makes such a study problematic. The study’s authors even go so far as to quote from a previous study, stating: “It may be that, as the empirical evidence suggests, living in a nonintact family has adverse consequences for children. On the other hand, it may be that some unobserved process jointly determines family structure and children’s outcomes. For example, parents who are less committed to their family may be more likely to divorce and may also provide less support for children.”

    Rather than dissect the entire study here, however, I note one huge, dispositive flaw in using this study to support the idea that cohabitating couples should not be allowed to adopt or foster: the group of cohabitating couples used as data points in the study do not consist solely of the kinds of cohabitating couples who would seek to adopt/foster.

    Look at it this way: Assume cohabitating couples consist of sub-groups A through Z, and assume that only subgroups A through D are the type who would seek to foster/adopt and would be approved by DHS to do so. Why would average numbers that included E through Z be relevant to determining whether A through D provided good outcomes for children? (Hint: they wouldn’t.)

    One smaller, related flaw is the use of averages at all. As I wrote in my pro-adoption/fostering article, whether the average family in a group fares as well as the average family in another group is irrelevant when determining whether a specific family seeking to adopt a specific child is a good fit and in that child’s best interest.

    Proponents of adoption and foster care by cohabitating couples sometimes argue that the Department of Human Services could determine whether or not a cohabitating couple is fit for adoption or foster care on a case-by-case basis. The fact of the matter is, however, that if the DHS adopted that policy for one of its adoption and foster care standards, it would face pressure to do the same for all of its policies. That simply would not be feasible.

    Except DHS already does make every single decision about adoptive and foster families on a case-by-case basis. Every. Single. One. There is no form that says, if you meet these criteria, you are guaranteed to be a foster/adoptive family. Cox said as much earlier in his own article, if you recall.

    This statement is literally the most disingenuous statement I can imagine in this discussion. To say, in effect, “we can’t ask DHS to do something that they are already doing, so, instead, we should just strike this whole group of would-be families” is a disgusting sleight of hand, and Cox should be ashamed of himself for trying it. (Conversely, it could just be that Cox and Family Council are so bad at logic and so unfamiliar with family law that they really don’t recognize how incorrect they are, in which case they should probably not be opining on the topic.)

    That’s why foster children are not placed with people who smoke.

    Incorrect. A family that includes a smoker can get a waiver for this issue. Arkansas Code Annotated 9-28-413 says that a child will not be placed with a smoker “unless it is in the child’s best interests to remain” with that family. Again, the best interests of the child as a whole trump this specific criteria.

    Among other things, doing so can waive the child’s ability to legally inherit from their deceased parents—something no parent wants

    Also incorrect. Inheritance, heirs, takers by intestacy, and all similar matters are legally established and set as of the moment of death. If I am someone’s child at the moment they die, my inheritance is fixed, and no subsequent adoption would change that.

    At this point, I kind of feel like Cox is making up laws and scary scenarios in the hopes that people will flock to his position for safety.

    What this argument ultimately boils down to is that we know which homes have been proven to be the best for children.

    Agreed. To again quote my article: According to the American Psychiatric Association, the American Psychological Association, the American Academy of Child & Adolescent Psychiatry, and every other reputable expert in child welfare, a categorical ban on cohabitating couples is harmful to the emotional health and development of the children, is not in the best interests of the children as required under many provisions of Title 9 of the Arkansas Code, and has been shown in myriad studies to be unsupported by any scientific bases. Most importantly, these organizations, including the American Association of Child & Adolescent Psychiatry and the American Psychiatric Association, agree that there is no scientific support for the idea that unmarried couples are somehow less fit to be adoptive or foster parents than are married couples, and this is true whether the couples in question are homosexual or heterosexual.

    Cox’s article concludes with generalizations about how Arkansas children deserve “the best,” which I think everyone agrees with, and Cox made no real effort to rebut the position of the American Psychiatric Association, the American Psychological Association, or any other group who disagrees with Family Council’s position, no matter how much more informed such groups might be than are Family Council and the Alabama Policy Institute. In fact, aside from one flawed study, Cox has given the reader nothing to suggest that cohabitating couples cannot be the “best” option, especially in cases where there are no other would-be adoptive/foster parents.

    Look, in the end, a person can either believe the agenda-driven rhetoric of David Cox and the Family Council, which they base on one inapplicable and flawed study from a similarly agenda-driven group, or you can believe every reputable expert in the field of child welfare. The former wish to punish children by keeping them in state custody rather than allowing gays and lesbians to adopt/foster; the latter seek only to figure out what is actually best for the children.

    If we are truly concerned with the interests of the children, I fail to see how this is even really a debate.