Waldlaw Blog

Saturday, February 17, 2007

Two Americas

In his 2004 presidential campaign, John Edwards talked about two Americas: "Today, under George W. Bush, there are two Americas, not one: One America that does the work, another that reaps the reward. One America that pays the taxes, another America that gets the tax breaks. One America - middle-class America - whose needs Washington has long forgotten, another America - narrow-interest America - whose every wish is Washington's command. One America that is struggling to get by, another America that can buy anything it wants, even a Congress and a president." For the children of lesbian and gay families, there truly are two Americas. In one America -- represented by states like Washington, California, Wisconsin, New Jersey, and Pennsylvania -- children born to lesbian and gay couples get to have two legal parents, and get to have their relationships with these parents protected even if the parents' relationship ends in an ugly break-up. Children of lesbian and gay families are entitled to child support from two parents not one; they cannot be torn from a primary parent based solely on absence of biology or adoption. They are not "illegitimate" in the eyes of the law. In the other America -- most recently represented by a decision of the Utah Supreme Court yesterday denying visitation to a nonbiological lesbian mother -- children born to lesbian and gay couples are vulnerable to having one parent torn from them because the parents no longer can agree, and whichever parent holds the biology trump card wins. Children who were conceived by two people who unequivocally intended to raise them in a unified, two-parent family -- children who in fact were raised by two parents for months and years of their lives -- end up with only one parent. In 1973, the United States Supreme Court addressed the issue of illegitimacy: "We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. Similarly, we have held that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their parent. Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because her natural father has not married her mother. For a State to do so is 'illogical and unjust.' ...." (Citations omitted.) Gomez v. Perez, 93 S.Ct. 872, 874-75 (1973). Isn't it time to admit that if it is ïllogical and unjust" to deny benefits to children based on the marital status of their parents, it is equally ïllogical and unjust" to deny benefits to children based on whether they are born to a father and mother, two fathers, or two mothers? In what sense does it matter to a young child whether they are being denied contact with and support from a person they believed was their father or a person they believed was their mother? Either way, the child is left vulnerable based on a societal prejudice that has far outlived its time. I agree with John Edwards that there are two Americas. But the divisions between those two Americas encompass far more than the class divisions to which he referred. It is time to name and heal these divisions, in the interests of America's children.


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