Closely linked to the issue of gay marriage is the issue of gay adoption. The subject raises the stakes in the current national controversy, and, as usual, state intervention complicates the picture enormously.
Below I argue for the validity of the political intuition of both the left (that gay couples shouldn’t be prohibited by law from adopting) and the right (legalization raises the specter of children placed by courts in ethically dysfunctional environments and otherwise used as political footballs). I conclude that the social, cultural, and religious conflicts associated with gay marriage and adoption are best resolved through laissez-faire.
In a painfully circuitous column on gays and marriage, Jonah Goldberg writes: “I remain unconvinced that marriage is a ‘fundamental right’ and therefore immune to government regulation.” Rather than try to sort out the myriad confusions in this sentence, let us just state the obvious: marriage and family, like the ownership of property, precede the state. They are rooted in the freedom of association and the right of contract. They need no state to exist. In a state of anarchy, there would still be property, marriage, and family.
Historically, religious institutions and clan, not the state, had the strongest claim to adjudicating matters involving marriage, though in a free society the decision to marry is the individual’s. (The Catholic Church has long recognized the right of the individual in the choice of a spouse, for example, and the sacrament itself is confected not by the priest but by the couple.) The state took over this power and has made a mess of it. It should be restored to private institutions, and be none of the state’s business.
So should gays be permitted to marry? Michael Kinsley is right: government should get out of the marriage business. This answer flows directly from the general embrace of the principle of free association: people should be permitted to do whatever they want provided they aren’t violating anyone’s rights. They do not have the right to expect the Church, employers, or anyone else to recognize their choices as valid and morally legitimate, of course. If people have a problem with the idea of two men or two women being married — as would practically everyone throughout the whole history of world — there is an easy solution: don’t recognize it as a marriage.
We do this all the time in life. I love music but I don’t recognize rap, heavy metal, and Christian contemporary music as genuinely musical. I think they’re junk and I’m glad to say so. In fact, my opinion is that anyone who listens to this stuff is doing harm to himself, and, in the broadest possible sense, is debasing the culture. But to listen to this music is not harmful to anyone but those who choose to do so, so I am not within my rights to prevent it. As for the culture, I do not enjoy the right to shape it according to my own views of what constitutes beauty and art and truth. (If I did I would force everyone to listen to 16th century liturgical music, properly performed.)
So it is with gay marriage. If you think it’s a hoax, nothing prevents a free person in a free society from saying so, just as nothing prevents anyone from calling a union of two persons or more of whatever sort a “marriage.” If you don’t like that, and believe that society requires an overarching coercive authority to impose the family structure, you do not have much faith in the orderliness of human choice, you are not a liberal in the classical sense, and you won’t like the rest of this article. Suffice it to say that the traditional family structure is not a legal artifice; it is an outgrowth of tendencies in human nature, and it is not going to disappear because some men in Texas shack up and call themselves married.
The existence of the state, as well as its benefits and legal rights associated with marriage, add a layer of confusion. The very presence of legal marital protections and benefits cries out for the state to define what constitutes a legitimate marriage. By itself this is a dangerous power. If the state can define a marriage, it can dictate the workings of the marriage and family too. It can police the raising of children, kidnap kids, prevent them from working for wages negotiated by contract, limit or mandate family size, and a host of other considerations.
That marriage should be privatized is clear enough, but it leaves out a crucially important consideration: children. This factor is the main concern of those who would legally prohibit marital unions among gays. The worry is that once the state permits gays to define themselves as married, nothing stands in their way of adopting and raising children — a fact which gives rise to important concerns about the health of children in a setting that in all times and all places has been considered ethically objectionable by the dominant social ethos.
But let’s be precise about what in particular seems troubling about this to the point that many believe the force of law should prevent it. It can’t be merely the desire for all children to grow up in perfectly stable and moral home environments. Everyone knows children who are raised in less than ideal circumstances, from single-parent households resulting from death or divorce, to poverty, to cases of neglect. As sad as these cases are, hardly anyone thinks that the state should correct every one of them by imposing idealized circumstances, and properly so.
We look at such cases, feel bad about them, but recognize them as part of life — essentially private tragedies (I’m leaving out cases of severe physical abuse, of course). It’s true that children need both mothers and fathers, and it is absurd to pretend that anything less is just as good. But when this doesn’t happen, we help where and when we can but don’t necessarily believe that the state should actively intervene to crush all less-than-ideal family settings.
What’s more, it cannot be ruled out that children raised in a stable home with two responsible parents of the same sex would be a setting more preferred than an unstable home with parents of a different sex or a single-parent household. In fact, most people these days know of gay parents with children, and they haven’t led to any sort of social calamity. Such families are surprisingly bourgeois in terms of their internal life, and the results of such parenting on the kids. Perhaps this isn’t surprising; the desire to raise an adopted child may reflect a desire for normalization and regularization on the part of gays.
None of which suggests that people should or should not approve of gay adoptions. In all societies everywhere, such cases have always existed under a cloud of some degree of social disapproval and they always will. The only question of any political relevance is whether the state should actively intervene to prevent them or whether this is an issue that should be dealt with through non-violent means. As it is, there is nothing the state can or should do about single people having and raising children outside of a conventional marriage (of course it should not be subsidized by the state either). So it is unclear why adoptions should not be similarly permitted as merely the consequence of voluntary choice.
A main problem that inchoately exists here is the sense that gay adoptions would be somehow foisted on society via the court system, as an imposition, just as the courts are working to grant gays many special preferences in the law (e.g. the alleged right not to be discriminated against). We can easily imagine state adoption agencies, and those licensed by the state, adopting a rule of “non-discrimination” between gay and non-gay households, a completely preposterous rule but one that would be lobbied for by organized gay activists. Political pressure to relent in any such discrimination for or against gays would be intense.
Foreseeing an adoption system as politically poisoned as the current foster-care system, many people suspect that the demand for the right to marry and adopt is merely a ploy to have the state intervene yet again against bourgeois values. This is not an unreasonable assumption. The state adoption agencies in question, if they are permitted to choose gay parents, will not be wholly concerned about the well being of children or the desire of the donor mother. The children will be placed with a variety of other bureaucratic and political considerations in mind.
Even now, the entire adoption process is fraught with interventions that impede its development. Adoptive parents cannot purchase parenting rights, so there is no market as such. Agencies are hindered in their ability to make contracts in all directions. Private services, including those that would pay mothers to carry children to term, are either forbidden or crowded out by public services. The first step to clarity, then, is abolish all these interventions and not impose new ones, codifying neither for nor against additional rights for gays. The entire problem could be left to (unregulated) private organizations.
How would adoption work in a free society in which gays were permitted to call themselves married? The donating parent is a contracting party and would only give up a child provided certain conditions are met. That the child grow up in a regularized family environment is a minimum expectation that most all donating mothers (and fathers) would ask. If her child were to be raised by a two-person, single-sex household, she would surely have to approve it. In general, who is in a better position to want the best possible environment for a child besides the mother?
In a free society, there are no grounds to prevent women who bear children from arranging peaceful exchanges and cooperative arrangements concerning the parenting rights they own from the outset. If a woman conceives a child, she owns the parenting rights and can choose to give them away or sell them as she wishes. In this case, it is highly likely that the mother would seek conventional families to adopt her child. It might be that single-sex, two parent households would face a dearth of available children for adoption. Certainly they would have to pay a high price for the rights, given that we could expect far fewer mothers to approve these conditions than more conventional families.
It’s true that gays have a higher income than non-gays and could well afford the price. But there is another price tag to consider in a free market: the mother herself would be in a position to earn money from contracting with parents over parenting rights. Donor agencies concentrating on non-gay parenting might find themselves in a position to outbid the donor agencies concentrating on gay parenting.
In fact, we might expect that agencies and donors would have every incentive based on deep moral conviction to outbid the offers of pro-gay adoption agencies, and convince risk-averse mothers-to-be that their child should be adopted by non-gays. Each side would have every incentive to make the strongest possible case for or against gay adoption, thus providing an environment in which the research and findings on prospects for gay parenting would receive maximum encouragement and exposure.
We can see, then, that the free market might end up seriously discouraging gay adoptions, simply because mothers who relinquish parenting rights would likely prefer non-gay to gay parents. Would households in which gay couples raise adopted children continue to exist? Most certainly, but the crucial thing here is that all parties would have to agree to the arrangement. Would there be abusive settings and morally objectionable environments for kids? Certainly, but those exist now, whether the families are gay or non-gay.
Under the principle of laissez-faire, all parties would have every reason to want to continue to monitor the arrangements once they are agreed upon. Moreover, the experience of present and future gay adoptions would have a big influence on their prevalence in the far future. The feedback works here too: gay parents would have every reason to do the best possible job so as to improve the reputation of gay parenting.
Of course those who object on moral grounds would continue to be free to decry such arrangements, just as gay parents would have every reason to dispute their claims. This solution doesn’t solve every problem but neither does freedom itself. Freedom at least takes politics out of the question, which is the first step toward finding the truth in an atmosphere of peace.
Thanks to Stephan Kinsella, Walter Block, and Joseph Stromberg for their comments.