"Raising kids of color by white parents... requires a racial consciousness that is common in families of color, but rarely developed in white families."

Writes Frank Ligtvoet, the founder of Adoptive Families With Children of African Heritage and Their Friends. He's white, with 2 black children.

The National Association of Black Social Workers declared in a resolution in 1972 that transracial adoption was cultural genocide. The wording was, and is, cruel, but it is hard not to see its deeper truth: a Korean or black kid raised in a white world has lost his or her culture.

Black (or Guatemalan or Chinese) kids in transracial families belong to that family and also to the black (or Guatemalan or Chinese) community. Even if the white parents don’t like that idea — and there are too many who don’t — they will be confronted with it anyway.

Our daughter once threw a tantrum on a crowded street on the way to school, and the only way to move forward involved dragging. It was not a pretty sight, and a black woman who had witnessed the scene came up and, bypassing my partner, who was doing the dragging, addressed our child: “Is this your father? Is this your father?” She was claiming our daughter as part of the black community.

(None of my existing tags fit the race theme of this article. Racial politics, racial profiling, racial humor, racists, race and law, race and education, race and intelligence, race and pop culture. I resist creating new tags, but I had to do it here.)

Anti-adoption activists.

"This coalition makes bedfellows of people who would ordinarily have nothing to do with each other..."

Mormon and fundamentalist women who feel they were pressured by their churches, progressives who believe adoption is a classist institution that takes the children of the young and poor and gives them to the wealthier and better-educated, and adoptive parents who have had traumatic experiences with corrupt adoption agencies.

"S., who had never seriously considered adoption, was overwhelmed when Baby S., a healthy girl, was born in May 2012."

From a long NYT Magazine article titled "What Happens to Women Who Are Denied Abortions?" that concentrates on one 24-year-old woman.

“It was like, whoa!” S. recalled. “That first night was terrible. I was tired, and she was so hungry, and she had a very loud cry. They don’t tell you how hard it is to nurse your baby. You don’t know how painful it is for something to eat off you, and it’s pulling your skin.” She developed plugged ducts, a condition in which the breasts become painfully engorged with milk.

It’s not unusual for new mothers to have trouble breast feeding, but S. felt overwhelmed in other ways too. “This baby is such a crybaby, and I didn’t know what was going on,” she said. “I felt like she didn’t love me, like maybe she was mad at me.” S. watched bitterly as her family members held a contented Baby S. When S. held her, the baby would begin to cry. It went on like that for weeks. S. sometimes buried her head in her pillow, crying, when the baby cried. “Her tone was negative,” one of S.’s sisters remembers. “She would become angry, saying she wished the baby would shut up.”

If race is to be taken into account, what kind of percentage of a particular race must an individual possess?

The oral argument in the Supreme Court today was about the federal Indian Child Welfare Act.

Under the state court's interpretation, said [Paul Clement, representing the guardian ad litem appointed by the state court to determine the child's best interest], ICWA moves the inquiry away from the child's best interests to focus instead on biology, the birth father and race — namely, that the child has 1 percent Indian blood.

1%! 

I am reminded of the Court's pending affirmative action case, Fisher v. University of Texas, in which there were some pointed questions at oral argument about the problem of taking race into account when the individual's racial percentage — always a sticky topic — is minimal and self-reported:

Back to today's case:

Pressed by the chief justice,  [Charles Rothfeld, representing the father] said that it doesn't matter how large or small a child's Indian heritage is because under ICWA, an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.

Troubled by Rothfeld's contention, Justice Stephen Breyer noted that the father here appears to have "three Cherokee ancestors at the time of George Washington's father." And if you accept that view, said Breyer, "a woman who is a rape victim" could be at risk of having her child taken and given to the Indian father....

The court's decision in this case, [the adoptive parents' lawyer, Lisa Blatt] told the justices, is going to apply to other absentee Indian fathers who have impregnated non-Indian women. These women, she said, will be rendered "second-class citizens" with "inferior rights," and "you're basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "

Baby Veronica "deserves to be treated as a unique, multiethnic individual..."

"... whose best interests are not inexorably dictated by her blood connection to a tribal member."

The [Adoptive Couple v. Baby Girl] case has set off alarms among the tribes, and some child welfare experts, who consider the law the “gold standard” in attempting to keep children with their biological parents. Nineteen states and the United States have filed briefs defending the law.

"America 'Can Do Better'..."

A Drudgtaposition.

Driscoll is talking about the photo of Obama that happens to have a portrait of George Washington in the background, but that Drudge page he links to begins with a very striking picture of the new Pope, lying prone — with the quote "Respond to evil with good"— and a big closeup of a cute baby getting a spoonful of mush — with the headline "Putin Orders Ban on Adoptions By Foreign Gay Couples."

Graphically, the horizontality of the Pope corresponds to the spoon, but if that's expressing an analogy, it could be: 1. The Pope's advice is pap, 2. The Pope's advice is the simple nourishment that Putin would take from helpless babies, or 3. Sexual perversion (is the Pope humping the rug and what does Putin think gay people put in a baby's mouth?!!!).

ADDED: Sorry that #3 is inflammatory, but I'm just being honest about the alternative interpretations of the imagery. #3 is especially justified by the phallic imagery on either side of the Obama photo. Atop the left column, there's an upright microphone (representing the newly dead record producer Phil Ramone), and atop the right column there's Kim Jong-un (and another N. Korean) aggressively pointing fingers or guns or some sort of metal cylinders.

"If California provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that... if the case before us now were from a State that doesn't provide any of those benefits to same-sex couples, this case would come out differently?"

Justice Alito asked Ted Olson in the Prop 8 oral argument yesterday. Consider the problem of trying to narrow the case by limiting it to California, where voters amended the state constitution to restrict marriage to opposite-sex couples and where they permit civil unions that give gay people access to everything but the word "marriage."

There was much talk about the perversity of imposing more severe constitutional limitations on a state that has done much — but not everything — to include gay people and to give great leeway to the states that have excluded gay people altogether.

It does make some sense. The states that resist any inclusion have preserved arguments about the function of marriage that states like California have given up by structuring civil unions to provide almost equal treatment. It's hard to articulate a legitimate interest in only withholding the name.

But if the Court wants to leave the issue of same-sex marriage to the political process, why would it attach a consequence to taking the intermediate step of creating the civil unions category? That hampers the very process it would be purporting to enable.

ADDED: Later in the argument, Justice Scalia had this colloquy with Solicitor General Verrilli (who argued against Prop 8):

GENERAL VERRILLI: We are not … taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.

JUSTICE SCALIA: So your -- your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?

Amusingly, at exactly this point, Verrilli’s time’s-up red light comes on and he says” “It’s on.” He could have said, “Saved by the light!” But Chief Justice Roberts tells him to go on.

GENERAL VERRILLI: … I would just take out a red pen and take the word "only" out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it's an open question otherwise.

In other words, to recapture that “only” and put it in a paraphrase: He’s only arguing now that his argument is limited to states like California. If he wins this case, in the next case, when the other issue is presented, he will argue that ssm is required everywhere. Anyone can predict that. Roberts pushes:

CHIEF JUSTICE ROBERTS: You [say] it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.

GENERAL VERRILLI: If -- with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect.

What state doesn’t “allow” gay couples to have children and families? I can infer that Verrilli means allow adoption by gay couples, but it’s obvious that the concern about children extends to all the states, since a gay person can be a natural parent to a child and then live with a partner who is not the child’s parents.

Roberts doesn’t pursue that but sticks with his original point. Presumably, he's building the argument that it's incoherent to strike down Prop 8 without finding a right to ssm that applies to all the states.

CHIEF JUSTICE ROBERTS: So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.

GENERAL VERRILLI: Well, we think… you can wait in…

CHIEF JUSTICE ROBERTS: States where they have fewer legal rights.

GENERAL VERRILLI: What I said is it's an open question with respect to those States and the Court should wait and see what kind of a record a State could make. But in California you can't make the record to justify the exclusion….

Verrilli is saying that the state that permits adoption by gay couples can’t go back to the argument that a child is better off having both a mother and a father in the home. Does this cure the incoherence? I doubt it. It's a distinction that might be employed by a judge who looks forward to extending ssm to all the states in the next case. I don't think Roberts is one of those judges.

The phrase "voice of these children" seems to reveal the deeper thoughts and intuitions moving Justice Kennedy.

At today's oral argument in the Prop 8 same-sex marriage case.

Justice Kagan pushed the lawyer Charles J. Cooper to give some reason for excluding same-sex couples from marriage. Cooper seems to be trying to answer, saying that it's "reasonable" to think that "redefining marriage… as a genderless institution" could undermine marriage, making it less effective as a way to enforce "procreative responsibility." Seemingly unsatisfied, Justice Kennedy breaks in to say: "you should have to address Justice Kagan's question."

Cooper talks about how "it is impossible for anyone to foresee the future accurately enough to know exactly what [the] real-world consequences would be" if "this age-old bedrock social institution should be fundamentally redefined." This seems to be the interest in not changing anything until you have pretty good evidence that the change will be for the better. Justice Scalia tries to help, saying that if gay couples were married, there might also be a requirement to permit adoption. Even though California already permits same-sex couples to adopt, so how can California rely on the idea that it's bad for children. Scalia says that the requirement might apply to other states, and there is "no scientific answer" to the question whether having same-sex parents has a “deleterious effect" on children.

At this point, Justice Kennedy says this — boldface added:

I think... that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

The "Red Brief" is the respondents' brief under the Supreme Court's document preparation rules, but that's not the source of the "voice of the children" phrase. Searching the briefs, I found it in the amicus brief of the Family Equality Council:

The voices of children raised by same-sex parents — those who live every day within the family structure at the heart of these lawsuits — are too often unheard in the debates about same-sex couples and marriage. Their stories are too often missing from discussions of "traditional" families or "family values," and their personal experiences too often discounted as irrelevant. Although those who oppose marriage for same-sex couples frequently make assumptions about the quality of the children's family lives, the children themselves are rarely asked to explain what they actually experience.

This habitual omission is unfortunate because these children are uniquely qualified to speak about how their families look, feel, and function and how the availability — or unavailability — of marriage as an option for their parents colors their daily lives. These children are also among those persons most directly affected by both the Defense of Marriage Act (DOMA) and Proposition 8.

The voices of lesbian, gay, bisexual, and transgender (LGBT) youth are also too frequently disregarded in these debates. The laws banning marriage for same-sex couples or limiting federal recognition of such marriages leave these young people to question their own dignity and self-worth. This stigmatization has a profoundly negative impact on their self-esteem, sense of purpose, and well-being that threatens to burden them for the rest of their lives.

This brief presents the voices of these children.

If you want to know where Justice Kennedy's heart is. I think it's here.

Cooper stressed the lack of "data" about whether there's "any incremental beneficial effect” to the children in calling it marriage as opposed to just civil unions, but that's only saying there might not be a reason to include same-sex couples. Kagan's question was very specific: "So you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them?" Kennedy demanded an answer to that question, and though he acknowledged the lack of information, he leaped from that to the injury to the voice of the children. Obviously, he meant there's an injury to the children and we need to listen to the voice of the children. There was something odd about that leap and the way it was phrased that makes it feel revelatory of the deeper thoughts and intuitions moving Justice Kennedy.

Adoptive Couple v. Baby Girl.

Here's a case the Supreme Court accepted for review last month that's about a father who gave up his parental rights via text message:

Facts of the Case
When the biological mother of Baby Girl became pregnant she did not live with the father and the father did not support the mother financially. The mother sent the father a text message asking if he would rather pay child support or relinquish his parental rights. He sent a text back, saying that he would relinquish his rights, though he later testified that he thought he was relinquishing his rights only to the mother. The biological father was a registered member of the Cherokee Nation. The biological mother attempted to verify this status, but spelled the father’s name wrong and misrepresented his birthday in the request, so the Nation could not locate the father’s registration. The mother listed Baby Girl’s ethnicity as “Hispanic” instead of “Native American” on the birth certificate. The mother decided to put Baby Girl up for adoption because she had two other children that she struggled to support.

Adoptive Couple, who resided in South Carolina, began adoption proceedings in that state. The Cherokee Nation finally identified the father as a registered member and filed a notice of intervention, stating that Baby Girl was an “Indian Child” under the Federal Indian Child Welfare Act (ICWA). The father stated that he did not consent to the adoption and would seek custody of Baby Girl. After trial, the family court denied Adoptive Couple’s petition for adoption and granted custody to the biological father. The court held that the biological father was a “parent” under the ICWA because of his paternity and pursuit of custody as soon as he learned that Baby Girl was being put up for adoption. Adoptive Couple did not follow the procedural directives in the ICWA to obtain the father’s consent prior to initiating adoption proceedings. The Supreme Court of South Carolina affirmed.

Question
Can a non-custodial parent invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law?

Does ICWA define “parent” to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

More info here:  Baby Girl was 27 months old and had been living with the adoptive couple since birth when South Carolina Supreme Court told them that they were "ideal parents" but they had to turn the the child over to the biological father she had never met. Under state law, the child would stay with the parents, but the federal law "calls for special procedures rooted in the sovereignty of Indian nations and a history of abusive child welfare practices involving Indian children."