Why Children of Same-Sex Couples Need FADA
The First Amendment Defense Act has been justly promoted as a means to protect religious people, as well as other conscientious objectors, against those who might wish to retaliate against proponents of male-female marriage through the federal bureaucracy (complaints, charges, lawsuits, claims of damages, etc.; see this article by Roger Severino). As a Southern Baptist and vocal opponent of same-sex couples attempting to marry, I wholeheartedly support this legislation. My own recent experience being driven out of a tenured university position forces me to see FADA in urgent terms.
There is another angle, however, that I fear will get lost in this argument.
As of last month, I have been informed that children of same-sex couples are not a protected status explicitly in California and therefore have no means of redressing their grievances if they suffer discrimination, harassment, or retaliation based on this aspect of their identity.
Some children of gay couples are likely to be targeted by anti-gay individuals who dislike their parents; technically, the law will protect them by giving their parents the right to grieve such treatment. But what about children of gay couples who are being closely watched by the larger LGBT community and intimidated into remaining silent about problems in gay homes? For being the children of gays, they are being treated differently, and the difference is adverse. Yet because the group attacking them is protected and they as a group are not, they have nowhere to go within the legal system.
It is not uncommon for a protected group to be subject to anti-discrimination law if they discriminate against another protected group. Eric Walsh, Angela McCaskill, and the many African-American Christians who have been punished for supposed homophobia all attest to the eagerness with which oppressed minorities can be liable for supposedly harming other oppressed minorities.
But gayness, unlike blackness, is not automatically passed down as a protected status from parents to children. I inherited Puerto Rican ancestry from my mother but not her lesbianism. This places me in a conundrum that nobody in the government has been willing to try to solve.
While gays can be charged with racial discrimination and racial minorities can be charged with anti-gay discrimination, between gay couples and the children they adopt through the power of the state, there is a perfect asymmetry. The gay community can target and even destroy the child raised by gay parents as punishment for opposing gay marriage – which, for such a child, is an incredibly direct and personal issue – but if the child is not gay, then the child has nothing to charge against the harassers.
The role of the state in creating this inequality is alarming, which is why I published a highly controversial article on May 1, 2015 called "Imagine Gay Marriage Reparations." The article landed me on Right Wing Watch, but my argument stands even more strongly now in light of what has happened in the past year. If gay marriage were the legal tool by which large numbers of people (children of gays) were stripped of their heritage and forbidden from voicing objections or redressing grievances about it, then gay marriage itself would be a human rights violation for which the government upholding gay marriage would be primarily liable.
Imagine what a mess people have made without even thinking about it. When I wrote "Imagine Gay Marriage Reparations," I was being speculative, but now, having been hounded out of a job by liberals who retaliated against me for honestly describing the plight of children raised by gay parents, I have hard proof that this legal conundrum is headed toward a serious crisis.
This problem arises because the courts accepted the Fourteenth Amendment argument about children raised in gay homes needing to be protected against discrimination. The courts never considered the problem of children raised in gay homes becoming a suspect class of their own. Recall this coverage of the debates that took place during the lawsuit over Mississippi's gay marriage law:
The Mississippi argument featured gay rights lawyer Roberta Kaplan, who famously won the landmark Windsor case that struck down the federal Defense of Marriage Act. Ms. Kaplan told the court that no "logic, common sense & even simple human decency" should cause them to deny kids of LGBT couples right to have married parents, according to Lauren McGaughy, a reporter for Houston Chronicle.
Kaplan's manipulation of "kids of LGBT couples" is inexcusable. Kids of LGBT couples are denied the right, 100% of the time, of being raised in a home with their mother and father married to each other. The majority of such denials of rights come from the LGBT community. But who can sue them?
To be certain, many children of gay couples are delighted with their upbringing. But if they do not have a right to state they are not delighted with their upbringing, for the specific reason that they are children of gay couples and the LGBT community needs them to follow a script, then they are the targets of systematic denial of civil rights.
The discrimination by liberal people against dissident children of gays has no name and is not even a phenomenon recognized by the courts. As a result, such children have significant portions of their rights curtailed – they cannot speak freely about problems they had in gay people's homes and cannot endorse laws that run counter the gay marriage agenda without being targeted for discrimination, harassment, and retaliation.
Imagine that a gay parent raises a child who later rejects the adoption, criticizes the custody arrangement, and publicly repudiates the logic behind equating gay parenting and natural parenting. The child should have a right under the First Amendment to speak freely, validate a Christian position on family ethics, and even redress his grievances before the government and lobby for a correction in the law.
If the legal system confers so much judicial validation and rights of enforcement to the married gay couples who raise children, then the child's exercise of First Amendment becomes "discrimination" against the gay community to which the parents belong. The child could be exposed to retaliation and censorship, but the law would not protect such a child from discrimination, harassment, or retaliation – be it at school, at work, in the courts, or in the public square.
If this exercise strains your imagination, then don't worry. I'll introduce myself to you – I am that child, and I just lost tenure at California State University precisely due to this scenario.
In the amicus brief I filed jointly with Brittany Klein for Obergefell v. Hodges, Ms. Klein and I warned that the same-sex marriage would simply empower the gay community to take away the rights of children they adopted. The children of gays, or COGs, we warned, would "stand to lose significant legal protections if same-sex marriage is legalized" (4).
At the time, gay activists chuckled at this claim, and even many conservatives failed to grasp our meaning. The key, we explained at length, lies in the Fourteenth Amendment. It was being cited to enshrine a right to marry and found families even for categories of people who will have to take children from their biological parents. If the Fourteenth Amendment's "equal protection" clause guarantees that gay and lesbian adults can lay claim to the love and obedience of other people's children, but these children are not protected by the Fourteenth Amendment against the loss of their heritage or retaliation for not loving and obeying their assigned parents, then how is this protection equal at all?
Once I published articles on this topic, blogged about my personal experience, gathered testimonials from other children of gays, and filed briefs in court, all Hades broke loose at my job. Gay administrators and their allies waged a four-year campaign of terror on campus, placing frivolous reprimands in my personnel file, blocking my funding, barring me from department agendas, refusing to investigate vandalism and harassment from anonymous sources, and ginning up student anger so that I would be tied up in surreal Title IX investigations. Maybe these are dozens of coincidences, and these events miraculously happened at the same time that GLAAD and the Human Rights Campaign placed me on their public blacklists and broadcast where I worked. It would take an equal employment investigation to get to the truth.
Investigators cannot investigate, because children of gays are not a protected status, but gays are protected. See how awful this is?
In the course of attempting to resolve conflicts at my former job at California State University-Northridge, I conferred with the discrimination investigator and was told that I was "protected" under California law due to my marital status (I am married to a woman), veteran status (honorably discharged from the U.S. Army Reserves), religion (Southern Baptist), national origin (Puerto Rican and Filipino), color (midway between white and black), race (multiracial Latino), and even "ancestry," which I hoped would apply to people who had homosexuals or bisexuals in their lineage. Much of my negative experience at CSU Northridge was tied to these identities. For example, I was the target of significant silencing and retaliation when I sought to diversify the College of Humanities' curriculum.
Yet if my opponents can prove that the adverse actions against me were due to my being the "wrong" kind of COG, then everything they did becomes legal – even, presumably, if their hostility to me based on my autobiography is mixed in with racism, religious bias, and hatred of the military.
The investigator tracked down the regulatory guidance from authorities higher up in the chain of command. The final ruling was that children of same-sex couples are not protected, and I cannot construe any of the above categories to refer to my identity as someone raised by a lesbian with the help of her lifelong female partner. Gay parents are protected by law from the criticism of children they raise, but children are not protected by discrimination from the gay and lesbian community.
FADA is worded to protect people from opposing gay marriage even if they are not religious, and even if their opposition is "personal." This is crucial for children placed in the homes of gay couples. It would created a protected status for them, which currently exists nowhere in the law. Further protections are likely to be necessary, but this first step is fundamental.
Robert Oscar Lopez can be followed at English Manif, Soundcloud, and Twitter. His longer arguments about the effects of the marriage equality movement can be found in Jephthah's Daughters: Innocent Casualties in the War for Family Equality.