“Shafer’s entire bloated essay is premised on the notion that gay people are inferior as spouses, inferior as parents and inferior in all other respects.”

Jeffrey A. Shafer
Jeffrey A. Shafer, ADF

Jeffrey A. Shafer is a lawyer at a hate group Alliance Defending Freedom. Thursday Shafer writes “Obergefell and the Right to Other People’s Children.” It is an angry and pretentiously pseudo-intellectual polemic bloated to 2,200 words. The bottom line is that Shafer doesn’t approve of gay people, their marriages and their adoption of children.

The source of Mr. Shafer’s homophobia (in the true sense of the word) might be his education. Jeffrey A. Shafer’s baccalaureate was earned at that bastion of critical thinking, Oral Roberts University. Pat Robertson’s Regent University provided Shafer with a law degree.

Now coming into view is an adult right to possess and have authority over other people’s recently born children. What this means, and portends, merits more consideration than it is presently receiving.

“Now coming into view?” Our nation’s first adoption law dates back to 1851 in Massachusetts. To describe adoption as a possession that one has authority over is how we would characterize a slave. The important thing that Shafer ignores is that adoptive parents take responsibility for a child and raise that child as their own. Moreover, adoption is an act of love. The child is neither a possession nor a captive.

After entreating the Supreme Court to rule in Obergefell v. Hodges that marriage is not about children and the procreative union of husband and wife, but instead about adult companionship, affection, and government dignity-conferral, individuals in marriage-licensed same-sex partnerships now demand access to children—because they are married.

It seems to this observer that marriage was never about procreation until gays wanted to marry. Shafer’s “individuals in marriage-licensed same-sex partnerships” means married gay couples — with Shafer’s disapproval. They are legally married and Shafer’s approval is neither sought nor required.

Family law is a bit different from what Shafer suggests. Single-parent adoption is perfectly legal in the United States. However, some states ban joint adoption. A married couple, therefore, has the right to adopt as a couple; both spouses becoming parents. (I do not have a law degree but I have a computer capable of connecting to Google). “Access to children?” What does that mean? Is Shafer suggesting something predatory? Probably. Yet, as married couples we have the legal right to adopt children as a couple. Again, Shafer’s disapproval is irrelevant.

Ah, the national decline of intellectual honesty:

As the law traditionally presumed that a child born to a wife was the child of her husband, now the law must deem the female partner of a mother to be the child’s other . . . parent. Thus, advocates of marriage-redefinition borrow from the institution they just assassinated the legal standards historically associated with it—as if these could survive the death of their source, and sensibly transfer to same-sex relationships.

Mr. Shafer does not approve of same-sex marriage. We get it. Reworking the losing arguments from Obergefell only reflects animus in contrast to something that is meaningful. As a lawyer he should know that all married couples share certain rights, privileges and responsibilities. Those are all perfectly “sensible” including adoption. Mr. Shafer does not approve. That is just too bad. Shafer will continue to be miserable because of his sanctimonious presumptions rather than anything logical.

Representative of this trend is the case of Pavan v. Smith, ruled on by the Supreme Court earlier this summer. In that litigation, two same-sex female couples in marriage-licensed relationships sued the State of Arkansas. The couples demanded the automatic entry of both women’s names on the original birth certificate of the child born to one woman. …

The Court ruled as follows:

Having chosen to make its birth certificates more than mere markers of biological relationships and to use them to give married parents a form of legal recognition that is not available to unmarried parents, Arkansas may not, consistent with Obergefell v. Hodges, deny married same-sex couples that recognition.

Gorsuch, joined by Alito and Thomas, dissented. Chief Justice Roberts joined the majority (6-3). While Roberts might have disagreed, his respect for the precedence established by Obergefell was more important. Gorsuch’s dissent frames much of Shafer’s argument. Gorsuch also overlooks the fact that the birth certificates of adoptees are amended.

The Court in Obergefell did indeed recite that “the States . . . have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities,” and the Court included “birth . . . certificates” in its illustrative litany. But this is rather beside the point. What marriage has entailed “throughout our history” is exactly what the Court’s ruling in Obergefell was designed to overthrow. Obergefell’s revision of marriage severed the connection of marriage to traditional birth certificate policy.

That is a preposterously dishonest argument. The Court ruled that states are responsible for marital law providing that it is not discriminatory. The only thing that seems to have been “severed” is Mr. Shafer’s tether to reality. The birth certificates of adopted children are amended, replacing the names of the birth parents with those of the adoptive parents. Once again, Shafer’s disapproval is irrelevant.

States “throughout our history” assuredly did not grant automatic birth certificate entries to persons categorically unrelated to the child. …

That might be true because the nation’s first adoption law came into effect in 1851 (as I note above). However it is not true now and has not been true for many years. Again, the birth certificates of adopted children replace the names of the birth parents with those of the adoptive parents.

After much repetition of how much Shafer does not approve of gays or their marriages:

What litigants are left with, then, is a nominal trick: Something called “paternity” or “birth certificate” was historically associated with something called “marriage,” so the nouveau policies appropriating those old names must be bundled, too. Remarkably, this bait-and-switch has been credulously received and rewarded by courts and agencies across the country.

More repetition. The law of the land is that same-sex couples have the same marital rights as opposite sex couples. The Supreme Court ruling did not require Mr. Shafer’s approval. Shafer is an advocate of both Christian privilege and Christian supremacy. His opinion is that the Supreme Court should have deferred to conservative Christian values, ruling instead for marriage discrimination.

Justice Alito wrote something very telling in his dissent in United States v. Windsor. Alito wrote a line to the effect that the legalization of same-sex marriage left opponents to be considered “bigots or superstitious fools.” That makes no sense at all and, at the same time, it makes perfect sense. It makes no sense at all to claim that the reason to vote against equality is to prevent the opprobrium earned by being against equality. On the other hand I would concur that opponents of marriage equality are pretty much bigots or superstitious fools, or both.

Shafer’s entire bloated essay is premised on the notion that gay people are inferior as spouses, inferior as parents and inferior in all other respects. One has to wonder how Mr. Shafer arrived at that conclusion. What is it about gay people that makes Shafer so angry? Is he insecure, is this a reflection of his Christian isolation or both? He doesn’t know because it is unlikely that he is sufficiently introspective to even formulate the question.

I am skipping over a great deal of material that is just more of the same. Shafer’s conclusion is rather grandiose but at least we get there:

The uniqueness, fecundity, functional elegance, relational logic, and social value of the husband-wife marital relation testify to its created meaning and intentions. Its preservation as an institution in law and society is indispensable to preserve the eminently public truth of human identity as embodied and familial. We may suppress that truth in our epoch of mandatory incomprehension, but seeing the obvious remains available. One should hope it will not require the pitiless crowbar of events to compel our return to collective acknowledgment. But should it be so, the resultant clarity may be a mercy to future generations having in hindsight an instructive exemplar of disaster.

I had to look up “fecundity.” It is the ability to crank out an abundance of children. In the end this has noting to do with the stated premise of adoption. This is about Shafer’s strident objection to marriage equality. The simple fact is that the “disaster” Shafer refers to is not a reality. Rather, it is an irrational fear after having built up a head of steam over the fact that gay parents appear on an adopted child’s birth certificate. Throughout this diatribe I have been thinking to myself “so what?” — usually with a choice third word in the middle. That simple question is never answered. In Shafer-world is a given that gays are evil and gay parenting is profoundly evil.

That is where Justice Alito’s “superstitious fool” should be considered. Over many years there is no evidence that same-sex marriage has had any effect on opposite-sex marriage, let alone one that is dire. There is an abundance of evidence that the children of gay couples are healthy and happy. Most people — indeed most Christians — are not literalists. They believe that those ancients texts reflect the values of their times. Mr. Shafer is in bondage to those same ancient texts. His obvious anger comes from trying to adopt ancient principles to a more knowing world than existed at the time those chronicles were written. A few centuries ago I am sure that some people had the same reaction to separating our planet from the idea that it is the center of the universe. Slavery to scripture exacts a very hefty toll.

Related content:

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.