Jacob Sullum / December 3, 2008

Gay by Force

Last month, on the same day the California Supreme Court agreed to review a state ban on same-sex marriage, the online matchmaker eHarmony settled a New Jersey discrimination complaint by agreeing to serve gay singles. The following week, a Florida judge ruled that a state ban on adoption by homosexuals is unconstitutional.

To the average social conservative, these developments represent a campaign to force “the gay agenda” on people who are morally opposed to homosexuality. To the average gay rights activist, they represent a just struggle for equal treatment under the law. If there is any room for common ground between these two seemingly irreconcilable perspectives, it lies in recognizing the crucial distinction between public and private discrimination.

The adoption issue should be the easiest to resolve, since policies like Florida’s hurt children as well as would-be parents. In the case that prompted Miami-Dade Circuit Judge Cindy Lederman to override the state’s ban on gay adoptive parents, Martin Gill and his partner had been raising two brothers, now 4 and 8, since 2004, when the state took them from their homes because of neglect and placed them in foster care.

No one disputed that the two men were excellent parents or that the boys were thriving in their care. Yet state law prevented Gill from adopting the brothers and giving them a permanent home simply because of his sexual orientation.

By threatening these boys with separation from the only decent parents they’ve ever known, this law elevates anti-gay ideology above children’s welfare, which is supposed to be the state’s paramount concern in adoption cases. More generally, by artificially limiting the pool of adoptive parents, the law makes it harder for children to find permanent homes.

Whether or not Florida’s policy is “illogical to the point of irrationality” – the basis by which Judge Lederman ruled that it violates the right of equal protection – the state legislature clearly should have changed it long ago. Doing so does not require moral approval of homosexuality; it merely requires the recognition that being gay does not automatically make someone an unfit parent.

One of the arguments for barring gay couples from adopting is that they tend to be less stable than heterosexual couples. If so, banning gay marriage hardly helps.

In November, California voters approved Proposition 8, which amended the state constitution to define marriage as a union between a man and woman, thereby reversing a May 15 decision in which the state Supreme Court declared an earlier ban on same-sex marriage unconstitutional. The legal logic underlying both the challenge to Proposition 8 and the decision it overturned is shaky. Yet as a matter of fundamental fairness (which is not always the same as the demands of a particular constitution), the package of legal arrangements known as civil marriage should be available to all couples, regardless of sexual orientation.

Ideally, the government would leave marriage to private institutions, which managed to maintain it for almost all of its history. Short of that, those institutions and the individuals who follow their teachings should be free to accept or reject gay unions as they see fit, which means they should not have to worry about being sued for unlawful discrimination.

Such fears played a conspicuous role in the Proposition 8 campaign, and the eHarmony case shows they’re not fanciful. Eric McKinley, the gay man who filed the New Jersey civil rights complaint that forced eHarmony to start matching same-sex couples, says the company’s straights-only strategy was “very hurtful” and made him feel like “a second-class citizen.”

Unlike a government that claims exclusive authority to approve adoptions or marriage, eHarmony has plenty of competitors, including online matchmakers that advertise themselves as gay-friendly alternatives. Yet McKinley could not bear the thought that one of many dating services chose to focus on heterosexuals. Such intolerance of diversity undermines the struggle for gay rights by feeding fears that equal treatment by the government means equal treatment by everyone.


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