Fighting with Phantoms: A Reply to Warring with Wardle
Lynn D. Wardle | 1998 U. Ill. L. Rev.
In this essay, Professor Lynn Wardle responds to Professor Carlos Ball's and Ms. Janice Pea's article, Warring with Wardle: Morality, Social Science, and Gay and Lesbian Parents, published in this issue of the University of Illinois Law Review. In their article, Professor Ball and Ms. Pea criticize Professor Wardle's earlier work on the subject (also published in this journal), but Wardle argues that Ball and Pea have mischaracterized a number of his positions and focused their criticism not on Wardle's actual claims and proposal, but on their preconceived notions of what the positions and proposal of a critic of homosexual parenting must be. While he claims that they have conceded many key points of his article, Wardle criticizes Ball and Pea for failing to address the core issues raised by his proposal.
Wardle explains that his original proposal was simply that courts should adopt a rebuttable presumption that ongoing homosexual relations by one claiming parental rights is not in the best interests of the child. Wardle argues that the law must make some presumption??one way or the other??concerning the potential harm to children when a parent engages in homosexual conduct. Given the need to make such a presumption, Wardle states that his proposal is quite moderate because it merely shifts the cost of overcoming the presumption onto the party that, by engaging in homosexual conduct, created the potential harm to the child. Finally, Professor Wardle agrees that it is important to consider the moral dimensions of homosexual parenting and argues that his proposed rebuttable presumption promotes the best interest of children.
* Professor of Law, J. Reuben Clark Law School, Brigham Young University. B.A. 1971, Brigham Young University; J.D. 1974, Duke University.