TV Recognizes the “Modern Family”—Why Not Governments?


I don’t watch “Modern Family,” the prime-time sitcom depicting “non-traditional”—e.g., same-sex, interracial, and inter-generational—couples. Still, I’m struck by how fast family realities change and how slowly laws and societal perceptions about what’s “right” reflect those changes.

The couples depicted in “Modern Family” were surely seen by society at large as more unusual in 2009, when the show first aired, than even just five years later. Today, the U.S. Supreme Court is considering two cases that might pave the way for federal benefits for same-sex couples, the number of interracial marriages is steadily growing, and the combination of reproductive technologies, longer life-spans, and the normalization of serial monogamy has taken age somewhat out of the equation when it comes to forming a family.

Even so, real-life individuals in same-sex couples, or those who live with someone of a different race or generation from themselves, often face daily struggles to protect their families from legal uncertainty and publicly articulated disgust. Depending on where we live, our intimate lives and families may be subject to criminal sanctions, unequal legal protections, scrutiny, shaming, and belittling.

Often, the protection of our families in law—while welcome—does not mean we are immune to community shaming and violence. In Latin America, for example, a wave of new marriage equality laws has not yet had an impact on pervasive community violence against LGBTI individuals. And though it is more than 45 years since the Supreme Court invalidated the prohibition of interracial marriage in Loving v. Virginia, prejudices against interracial couples—in particular where one of the partners is Black—are expressed frequently in social media and in some cases result in discrimination.

This tug-of-war between perceptions, laws, and reality expresses itself clearly where courts have to decide to what extent legislators get to put their own—or their constituents’—prejudices before principles of equality and facts about child welfare.

This week, the European Court on Human Rights issued a ruling in one such case. The court held that Austria had violated human rights by denying two lesbian women a proper evaluation of their adoption petition. One of the women had petitioned to adopt the biological son of her female partner, a child they both had been parenting since infancy.

The Austrian government argued that its adoption laws are based on the notion that all children ideally grow up with a father and a mother. The European Court on Human Rights countered that this vision does not adequately protect child welfare and certainly is not enough to implement discriminatory laws. So far, so good.

However, the case also permitted subjective perceptions of what a family should be to persist in the law. In this week’s ruling by the European Court highlighted the fact that Austria allows unmarried different-sex couples to adopt each other’s children, whereas unmarried same-sex couples cannot (and same-sex couples are not yet allowed to marry in Austria). Had Austria reserved adoption for those who are married and marriage for those who are straight, a close read of the ruling indicates that the court might have allowed this; after all, the Court had allowed precisely this set-up in a 2012 ruling involving France.

To be sure, governments have the mandate, and even the obligation, to encourage family structures that benefit society generally and children more specifically. And the laws and policies that flow from this mandate must to some extent be subjective. The state may, for example, believe that marriage has a value in and of itself, and not only as it relates to parental and economic stability, and, as such, seek to promote marriage through tax structures and inheritance laws.

But beliefs only go so far. The obligation of the state to protect the human rights of both children and adults must find its expression through science and facts. One fact is that same-sex couples and LGBTI individuals already parent children. Another, that the welfare of children correlates with parental support and love, and not with the parents’ sexual orientation, race, identity, or age.

But the overarching fact that governments across the world should address immediately is that there are any number of “modern families” who are discriminated against by law and ostracized in their communities.

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  • krrush

    We can’t have it both ways. We can’t assert that “governments have the …
    obligation to encourage family structures that benefit society
    generally” and then turn around and complain that “modern families” are
    discriminated against and ostracized.

    In a milieu of faith-based
    absurdities, I appreciate your call for advocating change based on facts, but the question of which
    family structures governments ought to favor (for example, gay and straight
    romantic dyads with children) is fundamentally unanswerable, no matter how many correlates are found between child welfare and parental love. Even if it were answerable, facts couldn’t possibly be gathered fast enough to
    end harm to the countless households that don’t conform to culturally privileged structures. In many cases, convincing data can’t be
    gathered at all (for example, due to small sample sizes of some truly innovative households). The problem
    with the left is not that we don’t have “science and facts,” it’s that
    we don’t have clearly articulated principles that change the terms
    of the debate—we simply reproduce the ridiculous frames that have been
    handed to us from conservatives.

  • http://twitter.com/cluelesscamper Marianne Mollmann

    I disagree that government encouragement of specific family structures can’t coexist with equality. The state can and does encourage a specific type of relationship (in the United States, married couples are privileged through tax structures, for example), in part because “we” believe married people benefit society more than unmarried people (I don’t personally agree with that, but there we go). This encouragement does not require the state to prohibit marriage equality or to disallow interracial marriage or to prohibit unmarried couples from procreating or living together. In fact, the state ALSO has an obligation to ensure that there is no discrimination in access to marital benefits, or in access to child rearing related benefits (such as they are in this country) such as sick leave etc, or that someone is not allowed to live their life as they want to (as long as it doesn’t infringe on someone else’s rights). It sounds like you take “encouragement” to mean “force.” Forcing anyone to marry (or not to marry) would be counter to the state’s human rights obligations.