I don't watch Modern Family, the primetime 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, 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, though welcome, does not mean that 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 although more than 45 years have passed since the Supreme Court invalidated prohibitions of interracial marriage in Loving v. Virginia, prejudices against interracial couples, particularly when 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 when 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.
Last 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. Last 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 setup 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 to some extent, the laws and policies that flow from this mandate must be subjective. For example, the state may believe that marriage has a value in and of itself, and not only as it relates to parental and economic stability, and it may therefore 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 is 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" that are discriminated against by law and ostracized in their communities.