A Reply To Josh Mesker of The Family Council

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It seems that Josh Mesker of the Family Council has authored a “rebuttal” to my reply to David Cox’s original article.  It’s a fantastic opus of misunderstood law, logical fallacies, misunderstandings of social science and the applicability of studies, and agenda-driven sleight of hand.  However, because Josh — Sterling College class of 2007, degree in Communications — wants to pretend like he has a nuanced and thorough understanding of the law, let’s start, like every good first-year law school class does, with a hypothetical:

Say we have a couple.  We’ll call them Alice and Bob.  Alice and Bob have been together for nearly 18 years, and they have three biological children — Carol, Dan, and Ed.  They have college funds set up for all three children, and their oldest, Carol, will be attending Northwestern University next Fall.  Alice and Bob are both doctors, and they are both part of the same six-doctor general family practice in West Little Rock.  Last year, Bob and Alice earned a combined income of roughly $350,000.  For whatever reason, however, Alice and Bob have never actually gotten married.

Now, say we also have a child in foster care.  We’ll call him Frank.  Frank has bounced around to three different foster homes in the last two years.  DHS has determined that family reunification between Frank and his biological parents is not an option, so he is awaiting permanent placement with an adoptive family.

If Alice and Bob decided that, with Carol moving out soon, they had the room in their home, the necessary income, and (most importantly) the desire to adopt Frank, would anyone in his or her right mind say that it was better for Frank to remain in foster care rather than be adopted by Alice and Bob?

Despite Josh’s attempts to distort things, that is really the entire issue in a nutshell: how can any policy that would prevent a couple like Alice and Bob from adopting be a policy that is in the best interest of children like Frank?

That’s it.  That’s the entire debate, or, perhaps more accurately, that’s the lens through which the entire debate must be viewed.

With that in mind, we can address Josh’s arguments.  All blockquotes below are his.  [Warning: this is a very long post, even by BHR standards]

Whether you’re of the opinion that adults have a right to adopt or foster (as some seem to be); or whether you’re of the opinion that adults have a right to cohabit with one another (as we agree); or even if you’re of the opinion that adults have a right to privacy (as Mr. Campbell and many members of the judiciary are), it does not matter. The rights of the children come before every single one of those rights, regardless of whether they are real or perceived.

Not to paint things with too broad of a brush here, but Josh immediately attempts to engage in a tact that is fairly common in articles and speeches and other communications from the Family Council, which is to try to minimize the amount of support that the other side really has.  Josh does this when he attempts to dismiss the idea that there even is a right to privacy by referring vaguely to “many members of the judiciary,” which of course sounds much less important than “the United States Supreme Court” and “the Supreme Court of Arkansas.”  See Lawrence v. Texas, 539 U.S. 558 (2003) (holding that Texas’s anti-sodomy statute “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”); Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that a Connecticut law criminalizing the use of contraceptives violated the right to marital privacy); Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002) (stating “it is clear to this court that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution”); Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999) (“The privacy of citizens in their homes, secure  from nighttime intrusions, is a right of vast importance as attested not only by our Rules, but also by our state and federal constitutions.”); see also Carey v. Population Services Int’l., 431 U.S. 678 (1977) (extending the right to privacy in connection with decisions affecting procreation to minors) (plurality decision); Eisenstadt v. Baird, 405 U.S. 438 (1972) (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”); Katz v. United States, 389 U.S. 347 (1967) (extending Fourth Amendment protections to anywhere a person has a “reasonable expectation of privacy”); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991) (explaining that one factor in determining whether seized evidence should be suppressed is the extent to which the privacy of the accused was invaded).

Josh’s dismissive stance also ignores that the Arkansas Legislature recognizes a personal right to privacy. See, e.g., Ark. Code Ann. § 9-27-309(h) (Repl. 2002) (protecting the privacy of juvenile records); Ark. Code Ann. § 20-7-302 (Repl. 2000) (Department of Health’s database must ensure that confidentiality and privacy are maintained); Ark. Code Ann. § 20-10-1003(b)(13) (Repl. 2000) (Office of Long-Term Care must develop a “residents’ bill of rights” protecting the residents’ right to privacy); Ark. Code Ann. § 25-19-105(b)(12) (Repl. 2002)(exempting certain records from FOIA release where “disclosure would constitute a clearly unwarranted invasion of personal privacy”).  So, too, did the drafters of the Arkansas Rules of Criminal Procedure.  See Ark. R. Crim. P. 2.2 (2010); Ark. R. Crim. P. 8.1; Ark. R. Crim. P. 10.1; Ark. R. Crim. P. 16.2; see also Ark. R. Crim. P. 21.1 publisher’s commentary.

Based on this, I think we can all agree that only someone who saw a right to privacy as a possible impediment to reaching a certain end would have the temerity to suggest that it wasn’t already established and well-settled that such a right exists.

Moving on…

However, many people do not fully understand or accept this fact, so we move to a discussion of individual liberties.

This should be good.  I mean, given your rock-solid understanding of the law as demonstrated so far.

When it comes to legally limiting certain individual rights to prevent them from infringing on the rights of others, Mr. Campbell makes some shortsighted arguments against our points. First, he says that while you cannot yell “Fire!” in a crowded theater, you can yell any number of other things. The situation he describes is a rather humorous one in which a person may yell any number of random words, but it is ultimately unrealistic.

The reason is we have additional laws on the books that prevent people from generally disturbing the peace-which can include yelling any number of disruptive words in a public setting, like a theater.

First of all, Cox’s argument was, essentially, that the right to safety held by the other patrons trumped my right to free speech, which is why yelling “Fire!” was categorically banned.  In explaining that this prohibition was not near as broad as Cox made it sound, I wrote: 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.  I was attempting — and failing, it would seem, based on Josh’s grasp of the argument — to demonstrate that the right to free speech was only slightly abridged, that there was no blanket prohibition on yelling generally.

Josh now attempts to disagree with my premise by invoking the possibility of disturbing the peace as a bar to my yelling “Tuba!” or whatever.  Ignoring that Josh is moving the goalposts and that this is outside the scope of Cox’s first argument inasmuch as we are no longer talking about the other movie watchers’ right to safety, Josh is nevertheless still incorrect.  Even disturbing-the-peace and disorderly conduct statutes must be narrowly drawn where they attempt to prohibit behavior that is otherwise protected by the First Amendment.  See Terminello v. Chicago, 337 U.S. 1 (1949) (holding that a breach-of-the-peace statute that prohibited speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” was unconstitutional); see also R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down a Minnesota Bias-Motivated Crime Ordinance as overbroad, proscribing both “fighting words” and protected speech, and as “content-based,” proscribing only activities which conveyed messages concerning particular topics).  The theater is actually not a great example for the whole safety v. free speech debate, because it is private property and the management could kick me out for yelling “Tuba!” even where it was not criminal.  But to take Josh’s disturbing-the-peace argument into a public setting, he is amazingly and entirely wrong to say that the government could pass a law that would make yelling a single, innocuous word in a public locale a criminal offense.

Moreover, we also have laws on the books that generally prevent certain forms of assembly, such as loitering. And we have curfews that prevent members of our population from being out in public after certain hours. We also have laws that allow private entities and local officials to enact such restrictions within their jurisdiction.

I’m trying to figure out how Josh thinks this is a rebuttal of what I wrote.  In my post, I stated: 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. Now Josh “rebuts” my point by pointing to other limited examples of when the right to association may be restricted? OK.

If Josh is asserting, as I think he is, that a prohibition on loitering or a law imposing a curfew somehow amounts to proof that, by golly, we can impose sweeping limitations on the right to association, he is wrong.

Statutes that prohibit loitering have been struck down when, for example, they were found to be so broad that they encompassed legal behavior.  See City of Chicago v. Morales, 527 U.S. 41 (1999) (striking down as overbroad an anti-loitering statute that prohibited “remain[ing] in any one place with no apparent purpose”); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (invalidating an ordinance that forbade, inter alia, “wandering or strolling around from place to place without any lawful purpose or object” both as being overbroad and as giving police too much arbitrary power).  Even the Arkansas statute prohibiting loitering recognizes that the prohibition must be narrowly construed, prohibiting only lingering or remaining in a public place “under circumstances that warrant alarm or concern for the safety of persons or property in the vicinity” (and, even then, only after the loiterer refuses to provide identification and a statement of purpose to the police when asked), for the purpose of engaging in certain illegal activities, to invade the privacy of another (there’s that right of privacy again), or in the vicinity of an ATM.  Ark. Code Ann. § 5-71-213 (Repl. 2006).

In a slightly different vein, curfew laws and other restrictions of the rights of minors have been upheld under one of two rationales: because  the state has a heightened interest in encroaching on the rights of parents and children when it does so in the best interest of the child, see Prince v. Mass., 321 U.S. 158 (1944), or because “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the guiding role of parents in the upbringing of their children” give children a less expansive set of constitutional rights.  Bellotti v. Baird, 443 U.S. 622 (1979).  When dealing with curfews, however, it is widely accepted that, at minimum, the curfew statute needs to have an exception for minors who are exercising their First Amendment rights.  See, e.g., Hodgkins v. Peterson, 355 F. 3d 1048 (7th Cir. 2004); Ramos v. Town of Vernon, 331 F.3d 315 (2d Cir. 2003); accord Schleifer v. City of Charlottesville, 159 F.3d 843 (1998).

The point of all this being that every one of these “laws on the books” that Josh makes vague allusion to is either a narrowly drawn infringement on other rights or is drafted so that it specifically exempts activity that is protected by the constitution.  Loitering and curfew statutes are not wide prohibitions on entire classes of people under all circumstances, nor could they be, which makes pointing to these laws as somehow being analogous to prohibiting adoption/fostering by all cohabitating couples intellectually dishonest at best.

[As an aside, “private entities” are not vested with the power to infringe anyone’s constitutional rights in a public forum, and constitutional rights like free speech and freedom of assembly do not apply on private property when restricted by private, non-state actors.  But, you know, other than that … well, actually, you were still pretty much wrong about all of this.]

Such sweeping regulations (or the authority to issue such regulations) fly in the face of Mr. Campbell’s argument.

No, they don’t.  Nor are they “sweeping.”  See arguments supra and infra.

Mr. Campbell asserts that you cannot restrict rights en masse, but the truth is we already do every day.

Again, no. This is just a ridiculous, unsupportable assertion.  Under United States v. Carolene Products Company, 304 U.S. 144 (1938), and its progeny, any law that infringes upon a fundamental right must: (1) be narrowly tailored (2) to achieve a compelling state interest, and it (3) must be the least-restrictive means available to achieve that interest.  No “sweeping regulation” that infringed on one’s freedom of speech or freedom of association would survive any constitutional challenges.

It is not a narrow analogy to compare these restrictions—and their reasons—to the laws and regulations governing adoptive and foster parents. The rights of children supersede any rights they have.

Wrong on so many levels, as we’ve established over the past 2,000 or so words.

Also, I note that your last statement, that the “rights of children supersede” everyone else’s rights is not only incorrect, see Bellotti, 443 U.S. 622, but is directly contradicted by your own example that we can impose curfew laws on minors.

Actually, Josh keeps attempt to frame the issue as the child’s rights “supersed[ing]” the rights of everyone else in all circumstances, as if that is his magical trump card.  In fact, the relevant standard is that the decisions that the state makes be in “the best interests” of the child.  It is not an issue of the child’s rights trumping anything; it is an issue of not letting our notions of what is right or wrong interfere with what is actually best.

Third, Mr. Campbell extrapolates from our discussion about the Department of Human Services that they make their decisions on a case-by-case basis. This is not true. What we listed were some of the DHS requirements that prospective adoptive and foster parents must be able to meet. The only sense in which we can see that the Department of Human Services makes its adoptive and foster care decisions on a “case-by-case” basis is in that they accept or reject individual applications—thereby being somewhat “case-by-case.” However, to say, as Mr. Campbell does in his article, that every single adoptive and foster decision DHS makes is done on a case-by-case basis is misleading, and—as far as we can tell—untrue….

I do not mean the following as an ad hominem, nor do I mean it to be the least bit hyperbolic: that might be the dumbest counter-argument I’ve ever read.  First of all, examining each application and accepting or rejecting it on its own merits is the very definition of “case-by-case.”  Secondly (and more dispositively), Section 200.1 of the Minimum Licensing Standards promulgated by the Child Welfare Agency Review Board requires that DHS “shall select the home that is in the best interest of the child, the least restrictive possible, and is matched to the child’s physical and emotional needs,” and it further mandates that the “placement decision shall be based on an individual assessment of the child’s needs.”  I struggle to figure out how DHS could effectively match specific children with specific, appropriate families without doing it case-by-case.

To the extent that Josh is only arguing that DHS does not make the “does this person/family qualify to be a foster/adoptive parent?” decision on a case-by-case basis, he remains incorrect.  First, as I mentioned, evaluating each application on its own merits is case-by-case evaluation.  Further, DHS’s own policy manual mandates the same.  Ark. Dep’t. of Human Servs. Div. of Child’n and Fam. Servs.: Fam. Service Policy and Proc. Manual at 139-149 (rev. Sept. 2010).  Similarly, along with the clear directive in Section 200.1, various parts of the juvenile code implicitly require case-by-case determinations of certain factors.  See, e.g., Ark. Code Ann. § 9-27-355 (DHS must determine whether it is in a child’s best interest to place siblings together in foster care or an adoptive home); Ark. Code Ann. § 9-27-402 (DHS must determine if it is appropriate for a foster family to take part in the case-plan conference, and also must determine if incarcerated parent needs to be included); Ark. Code Ann. § 9-28-405(g) (the CWARB “shall review the qualifications of persons required to have background checks” before determining if they are qualified to be foster placements).

Nevertheless, Josh’s argument seems to be hinge on the fact that, because there is no wiggle room on many of the DHS requirements for would-be adoptive/foster parents, DHS is not weighing a bunch of pros and cons against one another to reach a decision.  This is nothing but sophistry; no one understands “case-by-case” to mean only situations where every criteria being considered is some amorphous category with wiggle room.  “Case-by-case” means a situation where each application is considered on its own merits.  Simply because some criteria are non-negotiable does not change that.

Additionally, even ignoring Josh’s misconstruction of whether DHS makes case-by-case determinations regarding adoptions, the fact remains that nearly every unbiased child-welfare agency recommends individualized, case-by-case determinations in placements for adoption or foster care.  The agencies included the chief child-welfare organization in the United States, the Child Welfare League of America; the North American Council on Adoptable Children; and the National Association of Social Workers.  See, respectively, Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults (2005) (stating that “Child Welfare League of America (CWLA) affirms that lesbian, gay, and bisexual parents are as well suited to raise children as their heterosexual counterparts”)1; North American Council on Adoptable Children, Position Statement in Eliminating Categorical Restrictions in Foster Care and Adoption (2007) (“NACAC opposes rules, legislation, and practices that prevent the consideration of current or prospective foster or adoptive parents based on … sexual orientation….”)2; National Assoc. of Social Workers, Social Work Speaks: Nat’l Assoc. of Social Workers Policy Statements (6th Ed., 2006).

The position of these social scientists is supported in the scholarly literature on the subject.  See, e.g., A. Bussiere, The Development of Adoption Law, 1 Adoption Q. 3 (1998).  Perhaps most importantly for purposes of our discussion, this case-by-case stance has been accepted by the Supreme Court of Arkansas.  Howard v. Child Welfare Agency Rev. Bd., 367 Ark. 55 (2006).

As far as the issue of adoption versus guardianship is concerned, it seems a misunderstanding has occurred on the part of Mr. Campbell: What we were addressing was a concern many people bring up in the face of the Arkansas Adoption and Foster Care Act (and similar laws)—namely, that such restrictions will affect their ability to decide who takes care of their children upon their death. As we said, the Adoption Act makes a distinction between adoption and guardianship so as not to affect guardianship.

A misunderstanding? By moi?  I disagree.  David Cox stated, “Among other things, [adoption] can waive the child’s ability to legally inherit from their deceased parents—something no parent wants” (emphasis added).  I ignored his improper use of “their” and addressed the idea of an adopted child inheriting “from [his or her] deceased parents.”  Any “misunderstanding” on my part is a reflection of Cox’s inability to adequately communicate his argument.

But, that aside, I’ll address Josh’s arguments as well.

We spoke with numerous attorneys about the legal ramifications of adoption, foster care, and guardianship.

Name them.

No, seriously, name the attorneys that you spoke to and list when/where you spoke to them.  It’s not that I don’t believe overly generalized statements by Family Council employees, but, well, I don’t believe overly generalized statements by Family Council employees.

During those discussions, the issue of inheritance was brought up by these attorneys as a legal reason for distinguishing adoption from guardianship; it’s not just Act One that distinguishes the two, but laws across the board as well.

No kidding.  Please show me where I said that there was no difference.  Or, alternatively, stop trying to teach me about the law.  Either way, I’m good.

Mr. Campbell seems to describe a situation in which a child’s parents die, the child legally inherits from the parents, and then is adopted by a second set of parents. No legal problems. However, where the legal water becomes murky is when you’re talking about adoption or guardianship taking place while the biological parents are still living. Assigning guardianship does not sever any connections to biological parents; adoption, however, does.

What we were addressing was a common concern raised by people on both sides of this issue: That a restriction on adoption or foster care can affect their ability to will a relative to adopt their children (legally, the parents couldn’t in the first place) or assign a guardian for their child (the restriction does not affect guardianship while the parents are alive or after they have died). We articulated that adoption and guardianship are different, and then illustrated that difference by describing a real-life scenario.

And what Josh is describing is the exceedingly rare situation where a parent loses or relinquishes custody of his/her child, the child is adopted, the biological parents wish for that child to inherit whatever they have, and yet for whatever reason they do not create a will.  There are a number of problems with this, first and foremost of which is this: the exact same problem exists when a child is adopted by a married couple.  Stated differently — and, heck, let me really be explicit here — FAMILY COUNCIL’S PROPOSED BAN DOES ABSOLUTELY NOTHING AT ALL TO CHANGE, SOLVE, OR LIMIT THIS PROBLEM.  IT IS A RIDICULOUS RED HERRING DESIGNED, AS SO MANY OF THEIR ARGUMENTS ARE, TO SCARE PEOPLE INTO SIDING WITH THEM.

Additionally, as I alluded to, this is only a problem to the extent that the biological parents refuse to create a will.  If they are truly concerned with their biological child receiving whatever it is that they have to pass along, the biological parents need only draft a will.

(Furthermore, because I expect some form of “the cost of creating a will could be prohibitive for some couples” might be the Family Council’s disingenuous response, I preempt such argument with two points: 1. Arkansas recognizes holographic wills, meaning that all those parents technically need do is write a last will and testament in their own handwriting and sign it.  2.  The kind of couple that would be too poor to afford the drafting services of an attorney to create a will are highly unlikely to have anything to pass on through that will, so this argument is insipid at best.)

Finally, I should note that the statement, “[t]hat a restriction on adoption or foster care can affect their ability to will a relative to adopt their children” is silly.  As you mention, such a scenario is not even currently legal.  By extension, your suggested ban does nothing to change this, nor does it limit anything that is not currently limited.  But, hey, kudos for attempting to use it anyway.

Ultimately, however, this discussion has very little pertinence to the overall debate; we did not try to argue in favor of our position by suggesting that if children are placed with cohabiting couples, they may lose their ability to inherit, and Mr. Campbell’s accusation that we are “making up laws” is completely untrue. Mr. Campbell’s analysis of adoption and guardianship may be accurate in part, but it fails to consider all the situations in which a child may need adoption or guardianship—or the legal ramifications of such a decision. The law treats adoption as something legally different from guardianship, and we were simply affirming our belief that such differences should be observed in the application of a law that keeps adoptive and foster kids out of cohabiting homes.

My assertion that you were making up laws was not untrue.  Cox referred to inheritance from “deceased parents,” and then he misstated how such things are determined.  That is making up laws or, at a very minimum, grossly misstating existing laws.  Perhaps Josh would have preferred the latter formulation.

While my previous analysis might have ignored those other scenarios, my analysis herein did not.  Those legal ramifications have been considered, it has been demonstrated that your suggested ban does nothing to resolve anything, and I’ve pointed out the other flaws in your reasoning.  We’re also at 4,300+ words, so I’ll move along rather than belabor the point that you’ve yet to prove that the suggested ban does anything but needlessly discriminate.

Mr. Campbell also raised questions as to why we do not fight to prevent adoptive or foster children from being placed in single-parent homes, since they have been shown statistically to be less ideal for raising children than homes with a married mother and father. It is very important to note that this argument does absolutely nothing to further his case that cohabiting homes are stable enough for adoptive or foster children, but we will still address it: During the campaign to pass the Arkansas Adoption and Foster Care Act, we were often asked by people to write an additional adoption and foster care law that would do just that. We have not pursued any legislation of this nature, however, because our office has enough irons in the fire as it is, and we decided that starting with the most statistically unstable homes for adopting or fostering was the obvious choice. Following Mr. Campbell’s logic through to its conclusion, every law passed in America would have to be an omnibus law that addressed every concern or scenario in order to be legitimate. We all know that is simply ridiculous.

YIKES! I almost slid down that slippery slope you’ve got there!

Actually, that’s not the logical conclusion of my statement.  I asked, rhetorically, If the poorer outcomes that the API study suggests are caused by the lower socioeconomic status of average cohabitating couples are such an issue, why is Family Council not pushing for a ban on lower-income married couples’ adopting or fostering of Arkansas children?

I asked this because the Arkansas Policy Institute study referenced by Family Council throughout this debate (though, admittedly, not in Cox’s article for Progressive Arkansas) focused on how children of cohabitating couples suffered from a lower socioeconomic status, on average, than did the children of married heterosexual couples.  My question was, in essence, if socioeconomic status is really the Family Council’s concern here (or even part of their concern), why did they not first target the demographics with the lowest socioeconomic status?  That seems like a fair question, and readers who are not predisposed to agreeing with the Family Council will kindly note that nothing in my question asks the Family Council why they are not “address[ing] every concern or scenario.”  I am simply asking why they are focusing on cohabitating couples when married couples can suffer from the same problem.  More specifically, I am asking why the focus on cohabitation (and, especially, all cohabitating couples, including those not seeking to adopt), when it can ban incredibly qualified families from adopting simply because other cohabitating couples might not be ideal, should be upheld.

As for the rest of Josh’s argument here — that, by focusing on cohabitating couples, Family Council is “starting with the most statistically unstable homes for adopting or fostering” — I note that such a bland, generic statement ignores a great deal of extra information, including data and studies that directly contradict Josh’s point.  But I am getting ahead of myself; rather than deal with that right now, we’ll move along to Josh’s next argument.

The only leg on which Mr. Campbell’s article can stand has to do with scientific studies regarding adoption and foster care. On this point, there is a great divide, with scientific studies seemingly at odds with one another. However, the reasons are much more complex than one might think.

Scientific purists state there is no scientific evidence for refusing to place adoptive or foster children with cohabiting couples. However, if you talk to them or read their writings, you will find many make this claim on the basis that a truly comprehensive scientific study would take decades to complete. You would have to monitor a child’s progression well into adulthood.

Because such a “science experiment” would be 1) an enormous undertaking and 2) catastrophic for the children involved, if it were scientifically discovered that the homes they were placed in really were not conducive to raising children, no scientific study of this magnitude has been carried out—and rightly so.

That word, “science,” you keep using it.  I do not think it means what you think it means.

Last things first, Josh’s ironic use of quotation marks around “science experiment” changes nothing.  I am sorry if that bursts his bubble.

Next, Josh misconstrues the limitations of the studies done by independent groups, and his dismissive nature does not change the fact that nearly all studies done in this field dispute the very conclusion that Josh attempts to reach here.  Much like his “members of the judiciary” statement at the beginning, Josh attempts to ignore the figurative weight of the authority against him in an effort to convince people that, hey, this is all open to debate.  (You often see the same maneuver used by people who dispute global warming and those who suggest that intelligent design is as valid as evolution in science classes.)  Unfortunately (for him) it is not.

Related to that last point, I challenge Josh or anyone else related to the Family Council to provide studies by independent child-welfare groups or others who have conducted field studies that acknowledge or demonstrate that their studies were made “on the basis that a truly comprehensive scientific study would take decades to complete.”  Ideally, I would prefer to see a study that acknowledged this and did so in a manner that suggested the study in question was therefore flawed.  After all, like I said in my first post in this debate, Family Council is bad about using phrases like “some studies” without citing sources.  If Josh wishes for people to take his statements seriously, then, it is not asking too much for him to provide these studies that are so clearly flawed as to make their conclusions unreliable.

I also dispute that no long-term studies of the type Josh references have been undertaken.  By way of a single example, I reference the U.S. National Longitudinal Lesbian Family Study: Psychological Adjustments of 17-Year-Old Adolescents. 126 Pediatrics 28 (2010).  More importantly, I note the irony of preceding one’s cited sources with a disclaimer that, basically, nobody has done a study that really tells us anything.

Other scientific studies cited to support adoption and foster care by cohabiting couples often only consider one element of cohabitation—examining, for instance, only adoption by lesbian couples, foster care provided by cohabiting heterosexual couples, or adoption by cohabiting couples within a certain age group or who have lived together for a minimum number of years. The scope of the studies is too limited to be applied entirely to our discussion.

Of course, there are also those studies that focus solely on couples who are likely to seek to adopt/foster. See A Comparison of Family Functioning in Gay/Lesbian, Heterosexual and Special Needs Adoptions, 27:9 Child. & Youth Servs. Rev. 1031 (2005); What Does It Mean for Youngsters to Grow Up in a Lesbian Family Created by Means of Donor Insemination?, 20 J. Reprod. & Infant Psychol. 237 (2002); Does the Sexual Orientation of Parents Matter?, 66 Am. Soc. Rev. 159 (2001).  I guess we ignore those, huh?  They must be, what, too specific and too likely to dispute the conclusion that the Family Council seeks to reach?

However, let’s leave Science Class for a little while, and walk down the hall to Social Studies. The less comprehensive scientific studies cited or conducted by people like the American Psychiatric Association, the American Psychological Association, and others often fail to take into consideration information such as the following:

  • A 2003 article in The Journal of Marriage and Family estimated that cohabiting heterosexual couples break up at a rate five times higher than that of married couples.
  • A 2008 study by the National Marriage Project at Rutgers University cited that the breakup rate for cohabiting couples with children is more than twice that of married couples with children.
  • That same study concluded that “There is abundant empirical research in the United States that demonstrates the strongly negative effects of cohabitation and lone-parent families on child wellbeing.”
  • A study by the Center for Research on Gender & Sexuality at San Francisco State University concluded last July that only 45% of homosexual couples are monogamous.
  • A research report by the U.S. Department of Justice determined that “same-sex cohabiting men were nearly twice as likely to report being victimized by a male partner than were opposite sex cohabiting men by a female partner (15.4 percent and 7.7 percent)” and cited studies that “unmarried, cohabiting couples have higher rates of intimate partner violence than do married couples”.
  • A 1994 study by the Center for Disease Control found that marital status was the strongest predictor of abuse.

So…for those who are just joining us, here’s where we are: Josh says, hey, there really aren’t any good studies, but those studies by hacks like the American Psychiatric Association (composed, I imagine, of actual doctors) pale in comparison to things like an estimate by The Journal of Marriage and Family.

Less flippantly, let’s examine Josh’s citations.  The Journal of Marriage and Family’s “estimate” doesn’t warrant a response without a citation where one can find it and see what the estimate is based on.

The National Marriage Project says that cohabitating couples have a breakup rate higher than that of married couples.  Of course, as discussed, broad-based studies like this include cohabitating couples that are not the type who would seek to adopt or be foster parents.  As I wrote previously: 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.)

The same rationale goes for the report by the Center for Research on Gender & Sexuality; the relevant number is not what percentage of homosexual couples are monogamous, but what percentage of homosexual couples who would typically seek to adopt a child in Arkansas are monogamous?  Sweeping generalizations that include non-relevant groups do not further a debate that is based on individual determinations with specific criteria both for the type of person likely to apply and the type of person who could be accepted.  Ditto all of that for the report by the U.S. Department of Justice.  Again (and again and again), we are not talking about ALL homosexuals; we are talking about a distinct sub-group.  Finally, with respect to the CDC study, Josh fails to include the relevant numbers, fails to mention whether this included all unmarried people (as I assume) or only those likely to adopt, and fails to even provide the percentages in question.

But, as long as we are focusing on social science studies, and as long as we are keeping in mind the policy statements by other child experts discussed earlier, allow me to offer some in rebuttal.  See Rachel H. Farr, Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14:3 Applied Development Sci. 164 (2010); Wendy Manning, Children’s Economic Well-Being in Married and Cohabitating Parent Families, 68 J. Marriage & Fam. 345 (2006); Evan B. Donaldson Adoption Institute, Expanding Resources for Children: Is Adoption by Gays and Lesbians Part of the Answer for Boys and Girls Who Need Homes? (2006); Am. Psychol. Assoc., Policy Statement: Sexual Orientation, Parents, and Children (2004); Wendy Manning, Adolescent Well-Being in Cohabitating, Married, and Single-Parent Families, 65 J. Marriage & Fam. 876 (2003); Ellen Perrin, Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002); Am. Pyschol. Assoc., Lesbian and Gay Parenting (1995).

Mr. Campbell shouldn’t have a problem with considering more than just a purely scientific analysis correlating children’s outcomes with the home in which they were raised; his article essentially argues at one point in favor of that old maxim that “correlation does not equal causation.”

Because it doesn’t.  And I don’t have a problem considering social science studies.  I assume (probably incorrectly) that the Family Council does have a problem considering the myriad social science studies that dispute the conclusions Josh is pushing.

So considering the wealth of social evidence that illustrates cohabiting homes have higher instances of dysfunction than married homes, one has to ask: Do we even need another study to further convince us that adoptive and foster children deserve much better?

The “wealth of social evidence”?  Really?  The ratio of applicable (read: not overbroad inclusions of people who would almost never seek to adopt) studies that support Family Council’s conclusions to those that directly controvert them is in the order of 1:100 at best.  If there is a “wealth” of studies in favor of Josh’s suggested result, then there is a Bill Gates-ian amount of wealth that disagrees.  It takes a special kind of obtuseness to believe that citing a few inapplicable studies somehow disproves the evidence I’ve presented herein.

Going back to my initial hypothetical for a moment, there are two reports that warrant direct quotation here.  “Children living at least five years with same-sex couples and children living at least give year with cohabitating couples have odds of making good progress through school that are twice as high as noninmate children who spent the previous five years in group quarters.”  Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47:3 Demography 755 (2010).  For this reason, unreasoned acceptance of categorical bans such as this “allow[] the state to turn a blind eye to the fact that categorical placement bans virtually assure that some children will never be adopted, a result which simply cannot be viewed as promoting their interests.”  Tanya Washington, Throwing Black Babies Out with the Bathwater: A Child-Centered Challenge to Same-Sex Adoption Bans, 6 Hasting Race & Poverty L.J. (2009).

As I said at the outset, the issue is not one of child’s rights v. adoptive rights.  It is entirely a question of whether this proposed ban on adoption/fostering by cohabitating couples is in the best interest of the children awaiting placement.  Given the authority I’ve presented in this rebuttal and (more importantly) given your gut reaction to the initial hypothetical, how can anyone say that a rule that would prevent our hypothetical Alice and Bob from adopting Frank is in Frank’s best interest?  The only interest that is served in such a situation is the bigoted interest of the Family Council.
1available at http://www.cwla.org/programs/culture/glbtqposition.htm

2available at http://www.nacac.org/policy/positions.html#eliminating