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