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Culhane: Why gay adoption but no gay marriage?

Why adoption, but no marriage?

Whenever I speak about LGBT rights, audiences are hard-pressed to explain why almost all states allow gays and lesbians – single or partnered – to adopt or foster-parent children, but so few allow us to marry. Wouldn’t it make more sense to recognize the couple’s relationship first, and then move toward allowing same-sex couples to create families through foster care or adoption?

In fact, this is how several European countries have proceeded. In the Netherlands, for example, same-sex couples were afforded increasing levels of benefits and recognition over a period of many years, but the right to adopt was granted much more recently. Even today in France, same-sex couples can enter in a “pacte civile” (with many of the rights and benefits of marriage) but they can’t adopt.

We seem to have gotten this backward. I feel the effects of this topsy-turvy approach in my own life: My partner and I adopted our daughters, but we can’t give our kids the security that would come from their parents’ marriage.

I can’t justify this state of affairs, but maybe I can explain it. The starting point might be practicality: There are many kids in need of foster placement, especially, and departments of child welfare are in no position to turn away parents who are otherwise qualified just because their partner happens to be of the same sex. Social workers in many places are overwhelmed and underfunded, and are often concerned (unfortunately) about the physical safety of children and about the suitability of living arrangements. (These workers also tend to have a progressive attitude on social/political issues, in my experience.)

Of course, once kids are in foster placement the goal is often to get them into permanent, adoptive homes. If the foster parents are otherwise qualified and willing, then they often become the adoptive parents. By this route, many “forever families” headed by same-sex parents have been created.  (It makes no sense, then, to allow gays and lesbians to foster but not to adopt.  That was the policy in Florida until a state appellate court declared it unconstitutional, as not in the best interest of the child.)

That same “best interest of the child” argument was used by the Arkansas Supreme Court last week in declaring unconstitutional a ballot measure that forbade unmarried, co-habitating couples (straight and gay alike) from adopting or fostering children. The opinion builds from the rights of individuals to make their own choices about their intimate relationships – a right the law burdens by disqualifying them from parenting if they co-habitate – to the irrationality of this burden under the best interest standard, which considers placements on a case-by-case basis.

Ultimately, of course, this adopt-but-don’t-marry approach is unsustainable. And courts have begun to recognize this inconsistency. Indeed, state courts that have held in favor of marriage equality have routinely invoked the rights of same-sex couples to adopt. Here’s the Massachusetts Supreme Judicial Court, from Goodridge v. Department of Public Health – the first case to rule in our favor on marriage equality:

“The Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual.”

Therefore, the court went on to state, the “procreation” and “optimal setting for raising children” rationales for excluding same-sex couples from marriage are defeated by the state’s own policies.

This lack of consistency is a drum that needs to be beaten, over and over. It simply defies logic to allow us to adopt and raise children, but then require us to be legal strangers to each other as the heads of the families that are thereby created. We might worry that raising this issue will lead some opponents to argue: “OK, fine, gays and lesbians shouldn’t be able to adopt, either.” But attempts to change the law in this way have mostly gone nowhere.

Perhaps focus on this simple, common-sense issue will even accelerate the President’s “evolution.”

John Culhane is a Professor of Law at Widener University School of Law and is, according to the National Jurist, one of “23 Law Profs to Take Before You Die.”
  1. michaelandfred
    April 14th, 2011 at 09:46 | #1

    Thank you John, once again a very informative and insightful article. I had never even considered this upside down aspect of the marriage debate. I don’t remember it being used in the Prop 8 case either. If the state(s) itself regards us as qualified parents for adoptive children, a bar set much higher than that of naturally born children, how can they even entertain the “marriage is for procreation” or that marriage equality somehow is not equatable to raising a family. How can the states ignore this glaring legal hypocrisy?

    Wow. This really has my head spinning this morning. Thanks again.

  2. April 14th, 2011 at 10:42 | #2

    I’ve beensaying this forever.lol Since I was 14 and marriage equality peaked in my homestate of MA!!!! So we can adopt pretty much anywhere in the USA but we can’t get married? REALLY?

  3. emaestri
    April 14th, 2011 at 11:37 | #3

    I agree fully, but then again I think that everyone should be able to marry no matter who they want to marry. The heart wants what the heart wants.

  4. DaveW
    April 14th, 2011 at 13:15 | #4

    John, could another reason simply be that to EFFECTIVELY ban gay adoption, they’d also have to ban single parent adoption (in the states that don’t already)?

    I think an important distinction is the fact BOTH parents want to adopt but if not allowed, how could they block just one of them from doing it?

    Sometimes I think the bigots just aren’t very smart, either. They may not realize the nuances of single vs. partnered vs. married and it is too hard to make up the fake arguments they need to oppose us when it is this complicated (?), so they don’t.

    Of course we’ve seen them try in many states, so I may be off here.

    Regardless, the courts will give us our equality and we must keep fighting for it. I think adoption, as well as taxation, death, healthcare are great topics to (sadly) show how the federal marriage ban makes no sense whatsoever.

    I can’t share my savings, nor pensions, with my spouse after death (without tax consequences) even though the savings would have been less without him around contributing to the general fund. But they have my name on them. So, this is an example where fair people who simply haven’t been given the facts countering their cult’s bigotry can see there are real harms to this ban.

    Same with adoption….

  5. April 14th, 2011 at 13:54 | #5

    I’m wondering if the dynamic of HIV positive children up for foster care and adoption–beginning in the late 80s and early 90s–affected this situation. For a while, there, LGBT individuals and couples were some of the only adults willing to foster or adopt such children. It probably illustrated to the social workers our abilities in that area, and it met a very real social need.

  6. April 14th, 2011 at 16:58 | #6

    Gerry Fisher: You might well be right about that. There are certainly some well-publicized examples of people doing just that.
    DaveW: It’s true that it’s hard to cleave off gay individuals without getting rid of potential straight parents, as well. Yet some states tried to do so — Florida, for example. Until the recent court decision calling the state law unconstitutional, plenty of out gay people — single and partnered — were either turned away or, more often, knew that their lives would be subject to scrutiny during the adoption qualification process, and simply opted out.

  7. Jay
    April 14th, 2011 at 19:12 | #7

    There have been some states that have tried to enact laws or regulations to favor opposite-sex married couples in the adoption process without outright banning adoptions by single people or gay people. I am not sure how widespread these are, and how many of these policies are statutory or simply regulations by state agencies, but they are attempts to limit the number of gay adoptions without banning them altogether. I suspect that Gerry Fisher is right to think that one reason gay people are not prohibited from adopting is that we were among the very few people who would adopt hiv-+ or otherwise disabled children, and social agencies were willing to allow us to do that but not to adopt children who were in demand by heterosexual couples.

  8. April 14th, 2011 at 20:22 | #8

    I think the difference between laws that prohibit us from marrying our same-sex partners and state policies and regulations regarding the placement of children in the homes of gay or lesbian foster or adoptive parents may have to do, like so many other things, with religion. Placing a neglected or abused child in an approved foster/adoptive home does not implicate certain religious beliefs, at least not directly. But because the institution of marriage is both a civil contract and a religious rite, the two have been conflated to the point that even many otherwise rational people see marriage equality efforts as a pretext for destroying religious institutions.

  9. April 30th, 2011 at 17:37 | #9

    Come up to Canada, we don’t have gay marriage, we just have marriage and anyone can do it..

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