from Parenting & Family

Recent Legal Changes
Closely Follow Positions Taken
by the Mental Health Professions

By William C. Duncan, J.D.

William C. Duncan is Assistant Director of the Marriage Law Project at the Columbus School of Law in Washington, D.C.

During the last decade, we have seen a major rethinking of the law related to the family. The changes which have taken place follow related changes in the mental-health associations' treatment of those struggling with same-sex attraction.

The legal innovations that have resulted have created some dissonant trends in American family law, and these trends threaten to further disconnect the law from reality. So too, the posturing of some mental-health associations threatens to divorce their professional practice from the real needs of individuals.

Recently, changes in both the law and mental-health fields have begun to converge, with unsettling results.

The trend in the legal profession seems to be toward acceptance of what might be called the functional definition of the family. In this view, what constitutes a family for purposes of legal recognition is that a relationship manifests some of the characteristics associated with the natural family (i.e. a "family" is now said to be a group of people who provide for the physical or emotional needs of each other).

Interestingly, in making these kinds of decisions, some of the courts have relied on concepts such as the idea that a parent's same-sex partner is the other, "psychological parent" of the child. It seems clear that concepts embraced in the mental-health professions have contributed to these legal decisions.

So for instance, in a recent decision, the Rhode Island Supreme Court applied a statute which provides for a determination of the paternity of a child who is born out-of-wedlock in a way that finds that child, raised by a same-sex couple, to have two legal "mothers."

Similarly, laws written to allow for adoption by a child's step-parent have also been used to give a child two legal "mothers" or "fathers." And constitutional provisions which provide that men and women should be treated equally have been seen as a vehicle for assuring the redefinition of marriage to include same-sex couples.

In 1998, an Alaska trial court judge decided that that state's right of privacy included a right to the public status of marriage for two men in a "life partnership."

These momentous family law changes have almost exclusively been driven by the judiciary. While legislation to provide for joint parental rights to same-sex couples has been enacted in a handful of states, these laws have, with extraordinarily few exceptions, followed a decision by state courts mandating that result--so the legislative action is just a codification of a court decision.

No state legislature in the country has been willing to give marriage licenses to same-sex couples, but, after being ordered to do so by the Vermont Supreme Court, that state's legislature created a legal status of civil unions, where same-sex couples can get all of the benefits of marriage under a different name.

An analogous development in the medical profession has been much publicized of late; that is, the position statement by the American Academy of Pediatrics which favors legal recognition of same-sex couples as joint parents of the children they are raising. This statement was actually produced by a committee with eight members headed by a physician from Vermont. Nonetheless, advocacy groups like the American Civil Liberties Union--in their attempt to strike down Florida's preference for married couples as adoptive parents--are already employing the statement as evidence that America's pediatricians see no difference between a child being raised by his or her father and mother, or by two men or two women.

Similarly, the Child Welfare League of America and similar organizations filed a brief in the Florida case making this same point. The wisdom of relying on groups like these as the guide for public policy, is of course highly suspect; their positions on important issues have shifted through the years--for instance, many of these organizations have flip-flopped over whether trans-racial adoptions are appropriate for minority children.

However, when the judiciary takes upon itself the role of policymaking traditionally reserved to the legislative branch, it must weigh evidence as the legislatures have had to do, and for this, it increasingly turns to "experts." Thus the opinions expressed by professional organizations take on a real significance and begin to affect public policy.

Tragically, the non-representative opinions of the judiciary and the professional associations may thus become settled law, much to the detriment of the time-tested understanding of the family.

These developments must be resisted, not because either the judiciary or the health professions necessarily lack wisdom, but because they lack authority. In our constitutional democracy--relying, as it does, on the consent of the governed--it is this element of authority which is essential. We can trust that if the authority is respected, the requisite wisdom will usually follow.

It is imperative for those in the legal profession to resist unaccountable lawmaking, and for mental-health professionals to temper the public rhetoric of their supposed "representatives" in their own associations.

At the very least we can all speak up to make it clear that these decisions are made without our support or acquiescence.