This is a research paper I have been working on the last few months. I am not entirely pleased with it, but when you work full-time you can’t devote as much time to your schoolwork as you would like. Still, I thought I would share it here as the topic is timely. The main thrust of the argument is that studies show that children raised by same-sex couples are as well-adjusted as children raised by opposite-sex parents. Also, there are more children in foster care awaiting adoption than there are heterosexual couples willing to adopt them. Finally, there is a study that shows that children who age out of foster care are worse off than if they had been adopted, either by a same-sex couple or a heterosexual couple.

Enjoy and feel free to comment!

THOMAS J. LUCENTE JR.

Adoption by Same-Sex Couples

A Judicial Roadmap

Thomas J. Lucente Jr.

5/4/2012

 

This paper argues that the courts will have to intervene using the federal Constitution if same-sex couples are to be treated equally when it comes to adoption. Section I:  Introduction. Section II:  A background of the issue and the current state of the law.  Section III:  Analysis of the issue. Section IV:  Conclusion.

 

I.  Introduction

While same-sex marriage seems to grab all the headlines, one aspect of the same-sex relationship that does not often garner media attention is adoption by same-sex couples.  While adoption laws fall squarely under the purview of state powers, there is some recourse to the Federal Constitution when it comes to efforts to expand the ability of same-sex couples who wish to adopt.  Generally, successful court challenges to laws against same-sex couples adopting have been under the Federal Constitution’s Equal Protection Clause and state equal protection laws.  There have also been successful challenges under the Full Faith and Credit Clause and there has been at least one case of note that succeeded using a due process argument and its implied right to privacy.

This paper will examine each in turn.  It will begin by giving a background of the issue, first talking about its scope and the current state of the law (Section II).  It will then analyze the issue under the Equal Protection Clause, due process and the Full Faith and Credit Clause (Section III).  Finally, Section IV concludes that although legislative action would be the ideal solution to the problem, that is unlikely to occur without judicial prodding and that the courts should take the lead in showing state legislatures the proper course to take.

II.  Background

A.    Scope of the Issue

While adoption in one form or another has been around for millennia, “[a]t common law, adoption did not exist.”[1]  The concept of same-sex adoption is even more recent, first appearing in the 1970s.  However, courts were not too friendly to the idea.  As Vanessa Lavely explained:

For example, in 1975, a Washington judge refused to place a child with two gay men, reasoning that “‘substituting two male homosexuals for parents does violence not only to the literal definition of who are parents but offends the traditional concept of what a family is.’” . . . In fact, “there is no record of an adoption by an openly gay or lesbian parent during the 1970s.”[2]

When it comes to same-sex adoption and child-rearing, the law, indeed, popular opinion in general, lags significantly behind the scientific advances and understanding in this dynamically evolving legal and social sciences arena.  In 2008, Jason Blowman explained this problem as he called for legislative reform in the area of same-sex adoption and the possibility of using second-parent adoption—an adoption scheme that permits a person to adopt the child of a spouse or partner without requiring the biological parent to give up his or her parental rights—as a viable alternative for same-sex couples.  “The legal climate surrounding gay and lesbian parenting . . . remains unclear, being described as ‘fractured,’ ‘lagging behind,’ and requiring gay couples to ‘delicately navigate and manipulate the system.’  And in the words of one commentator, ‘The status of same-sex second-parent adoption is haziest.’”[3]  More recently, another commentator, Amy Ronner, also lamented about the state of adoption law when it came to same-sex couples.  “Family law has always been loaded with land mines for gays and lesbians who seek to adopt children or even claim custody or visitation rights with respect to their own children.”[4]  In those states that permit same-sex couples the right to adopt, “judicial decisions precede many of these statutes.”[5]  This began to change in the 1980s as homosexuals began to fight for the right to adopt.  As Karla Starr put it in the late 1990s,

During the past two decades, an increasing number of adoption petitions by gay and lesbian couples have been filed in state courts around the country.  The increase in adoption petitions is a reflection, in part, of the growing visibility and political strength of gays and lesbians.  Gays and lesbians are increasingly willing to judicially fight for custody and adoption rights.  This surge of interest by gays and lesbians in adoption is forcing state courts to struggle with the reality of gays and lesbians adopting children.[6]

Unfortunately, all too often, legislative and judicial decisions are made without a full understanding of the nature of same-sex orientation and its effects on children.  Or, as Ronner more colorfully put it, “Consequently, vastly important decisions, which affect homosexuals and their families, can stem entirely from idiotic misconceptions about same-sex orientation.”[7]  For example, a common argument against permitting same-sex adoption is the effect such an environment would have on the children.  A federal court in Massachusetts pointed out why this is erroneous by explaining that since 1996, when the U.S. Congress enacted the Defense of Marriage Act, “a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.”[8] In fact, as Ellen Perrin explained, a

growing body of scientific literature demonstrates that children who grow up with 1 or 2 gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual.  Children’s optimal development seems to be influenced more by the nature of the relationships and interactions within the family unit than by the particular structural form it takes.[9]

Still, the number of children raised in same-sex families is difficult to determine because of the secrecy and stigma surrounding homosexuality.  One survey conducted in the mid- to late 1990s estimated that somewhere between 1 million and 9 million children in the United States have at least one parent who is lesbian or gay.[10]  That number is likely to have increased in the intervening 15 years.  A more recent study—and one more pertinent to the subject of this paper—using data from the 2000 Census estimates there are 777,000 same-sex couples living in the United States and that about 20 percent of those couples are raising children.[11]  “An additional two million gay, lesbian, and bisexual Americans have an interest in pursing [sic] adoption.”[12]  The 2000 census also “reported 34.3 [percent] of lesbian couples raising children, with 22.3 [percent] of gay male couples doing the same.”[13]

Children of same-sex couples come to that situation taking various paths.  According to Perrin, “Most individuals who have a lesbian and/or gay parent were conceived in the context of a heterosexual relationship.”[14] Then, after a divorce, a same-sex partner will step in and fulfill the role of a stepparent.  This situation creates a host of problems concerning visitation and the like, which is outside the scope of this paper.  Increasingly, however, as social acceptance of same-sex relationships increase, many homosexuals are coming out sooner and entering into same-sex relationships at earlier ages.[15]

Naturally, many of these couples want children of their own.  While they can use several means, such as artificial insemination, sperm or egg donations, engaging a surrogate, or even more exotic reproduction technologies to achieve pregnancy, one growing option is adoption.

B.     Current State of the Law

Unfortunately for the same-sex couple seeking to adopt, the nation’s laws are an incongruent, inconsistent and often ambiguous patchwork of restrictions.  Before 1973, homosexuals were routinely barred from adopting, in part, because many believed homosexuality was a mental disorder.[16] .  That changed, however, in 1973 when the American Psychiatric Association removed homosexuality from its list of mental disorders.[17]  Today, in every jurisdiction, a homosexual person is not barred from adopting a child based on his or her sexual orientation alone.  New Hampshire and Florida were the last two states to repeal a specific ban against homosexuals adopting.[18]  New Hampshire repealed its ban in 1999.[19]  Twelve years before that repeal, the state’s supreme court “upheld the validity of a ban on lesbian and gay adoptions.  The opinion was co-written by then New Hampshire Justice, now United States Supreme Court Justice David Souter.”[20]  The justices said that the legislature had the right to bar homosexuals from adoption if it believes that the homosexual behavior provides a poor role model for children.  Florida’s ban, which was the oldest in the nation,[21] fell in 2010.[22]

While most states will permit a homosexual to adopt individually, that is where the similarities end.  According to the Human Rights Campaign, a civil rights organization working to achieve equality for lesbian, gay, bisexual and transgender Americans, as of April 12, 2011, only 16 states and the District of Columbia permitted a same-sex couple to jointly petition for adoption across all jurisdictions: Arkansas, California, Colorado, Connecticut, District of Columbia, Illinois, Indiana, Iowa, Maine, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Oregon, Vermont and Washington.[23]  In Minnesota, some same-sex couples have successfully petitioned in some jurisdictions to adopt.[24]  “Same-sex couples are prohibited from adopting in Mississippi and Utah.  State courts in Michigan have ruled that unmarried individuals may not jointly petition to adopt.”[25] The laws in many of the states are unclear as to whether same-sex couples may adopt.[26]  A few other states, most notably Utah, prohibit unmarried cohabitating couples from adopting, which naturally includes same-sex couples.

Then there is the issue of second-parent, or stepparent, adoption.  Some states allow a person to adopt the child of his or her partner.[27]  Again, the Human Rights Campaign reported that 10 states and the District of Columbia permit second-parent adoption among same-sex couples statewide:  Arkansas, California, Colorado, Connecticut, District of Columbia, Illinois, Massachusetts, New Jersey, New York, Pennsylvania and Vermont.[28]  In 16 other states, same-sex couples have successfully petitioned for second-parent adoption in some jurisdictions:  Alabama, Alaska, Delaware, Hawaii, Iowa, Louisiana, Maryland, Minnesota, Nevada, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Texas and Washington.[29]

As the above data from the Human Rights Campaign show, the “determination of parenting rights is always made on a case-by-case basis and it is ultimately the decision of the judge whether to grant the adoption petition.”[30]  So even if a state permits same-sex couples to adopt, judges have the power to thwart that adoption if they “feel” the adoption would not be in the best interests of the child.

State legislatures and judges are not the only obstacles same-sex couples face in adoptions.  Public opinion and religion also play a role.  In an example of the former, on November 4, 2008, 57 percent of those voting in Arkansas approved a ballot initiative that became known as the Arkansas Adoption and Foster Care Act of 2008 or “Act 1.”[31]  The law barred unmarried couples, same-sex or otherwise, from either adopting or fostering children.  It is commonly believed, however, that the law was really an attempt to ensure that same-sex couples could not adopt.  In 2011, the Arkansas Supreme Court ruled the law as unconstitutional.  In an example of the latter, The New York Times reported that “Roman Catholic bishops in Illinois have shuttered most of the Catholic Charities affiliates in the state rather than comply with a new requirement that says they must consider same-sex couples as potential foster-care and adoptive parents if they want to receive state money.”[32]  The church challenged the requirement in the courts and lost at the trial level.  In November 2011, the church dismissed its appeal and left the adoption business in Illinois altogether rather than comply with the requirement, which they said was at odds with their religious beliefs concerning homosexuality.[33]

III.  Analysis

A.    The Issue

This hodgepodge of laws and judicial decisions leave a lot of uncertainty in the area of same-sex adoptions and give much leeway to judges to implement the “best interests of the child” standard in making decisions concerning gay, lesbian, bisexual and transgender couples.  The fact of the matter is the nation is facing an adoption crisis and it makes to no sense to keep children from a safe and loving home simply because the parental couple happen to be of the same-sex with each other.

The Adoption and Foster Care Analysis and Reporting System from the U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau reports that the average age of a child in foster care in 2010 was 9.4 years old and that the average stay in foster care was 25.3 months.[34]  In total, as of September 30, 2010, there were 408,425 children in foster care.[35]  Of those children, 107,011 were waiting to be adopted on September 30, 2010.[36]  “Waiting children are identified as children who have a goal of adoption and/or whose parental rights have been terminated.  Children 16 years old and older whose parents’ parental rights have been terminated and who have a goal of emancipation have been excluded from the estimate.”[37]  The average age of the waiting children when they were removed from their parents’ care was 5 years old and the average time the awaiting children have spent in continuous foster care was 37.3 months.[38]  The average age of a child waiting adoption on September 30, 2010, was 8.1 years old.[39]

While 107,011 children were waiting to be adopted at the end of the federal government’s fiscal year 2010, only 52,891 were adopted during the fiscal year.[40]  That does not include those adopted without the help of a public agency.[41]  The average age of those adopted from the public foster care system during fiscal year 2010 was 6.4 years old.[42]  With more than 250,000 children entering the public foster care system every year and only 50,000 being adopted out of the system each year, the problem is easy to see.[43]

Too many children end up aging out of the foster care system without have ever been adopted.  In fact, while the number of children in foster care has been declining, the number aging out without ever being adopted has been on the rise.[44]  One longitudinal study by the University of Chicago and the University of Wisconsin shows that for those aging out of the system, the outlook is not sunny.[45]

Many of these young people are unable to turn to their parents or other family members for financial and/or emotional support.  Nor can they count on the state for continuing support once they have been discharged from care.  Consequently, the transition to young adulthood is a challenge that many of these youth face largely on their own.[46]

The study found that about 25 percent of those aging out will be jailed within two years.[47]  Other findings show that more than 20 percent will become homeless at some time after age 18; that only 58 percent had a high school degree at age 19, compared to 87 percent of a national comparison group of nonfoster youth; and of those who aged out of foster care and are over the age of 25, fewer than 3 percent earned their college degrees, compared with 28 percent of the general population.[48]  All these negative outcomes for children aging out of the system present a heavy burden on society, both economically and socially.  It is clearly to society’s benefit to get as many children out of the system as possible and into loving homes, regardless of the sexual orientation of the parents, especially in light of the scientific community’s determination as noted above that there is no significant psychological difference between children raised by same-sex couples and those raised by opposite-sex couples.

The first, best solution would be for state legislatures to recognize the prevailing scientific findings in this area that a child’s development is not hampered in any meaningful way by having a same-sex couple as his or her parents and that having same-sex parents is better than growing up in an institution or foster care.  The lawmakers, armed with this knowledge, could pass meaningful legislation that judges a same-sex couple using the same standards as heterosexual couples when it comes to determining the fitness of parents to adopt.  In fact, as noted above, many states already either permit same-sex couples to adopt or have no specific statutory proscription against such adoptions, making them theoretically legal.  Judges should still have the ability to judge petitions on a case-by-case basis taking into account the best interests of the child.  However, the sexual orientation of the parent or parents and their marital status should not play a role in helping judges make their determinations.

Unfortunately, today’s political environment in many states makes such an outcome unlikely as the November 2008 ballot initiative in Arkansas proves.  As noted earlier, the ballot initiative, which was essentially an attempt to outlaw same-sex adoptions, passed with 57 percent voting for it.  That is a landslide in modern elections.  It is unlikely that such states, where anti-homosexual sentiment runs deep, will voluntarily encourage or even permit same-sex adoptions.  If the nation is going to reach the desirable outcome of permitting and encouraging same-sex couples to adopt some of the hundreds of thousands of children available for adoption in the United States, as well as children from developing nations who are also available for adoption in the United States, then the most likely path to success lies along the judicial road.  There are three potential vehicles for arriving at that destination.  The first would be the most ideal—if there is no legislative solution—and that is under the Equal Protection Clause of the 14th Amendment.  Another option that is beginning to show some promise is the Due Process Clause and its implied privacy right.  Failing those two arguments, the less ideal scenario would be using the Full Faith and Credit Clause.

B.     Equal Protection Clause

The Equal Protection Clause of the 14th Amendment requires state actors to treat similarly situated individuals equally and limits how governments can classify individuals.  To establish an equal protection violation, the “plaintiffs must show that the defendants: (1) treated him differently from others who were similarly situated, (2) intentionally treated him differently because of his membership in the class to which he belonged (i.e., homosexuals), and (3) because homosexuals do not enjoy any heightened protection under the Constitution.[49]  Because the courts have never held that homosexuality is a protected class under the Equal Protection Clause, the courts use the lowest standard of review in determining whether a law violates the Constitution: rational-basis review.[50]  Rational-basis review almost always results in the state policy being upheld by the court because all the state has to show is that the policy or rule is rationally related to a legitimate government interest.[51]  This is not a very high standard for the state to meet.  Still, there have been some successes in fighting bans to same-sex adoption using an equal protection argument.  In fact, this was the argument used recently in Florida to strike down that state’s ban on homosexuals in general adopting.  At the time “Florida [was] the only remaining state to expressly ban all gay adoptions without exception.”[52]  In that 2010 case, Florida Dept. of Children & Families v. Adoption of X.X.G., a homosexual foster father, known only as F.G., petitioned the court to adopt two foster children who had been placed in his care.[53]  “The trial court found, and all parties agree[d], that F.G. [was] a fit parent and that the adoption [was] in the best interest of the children.”[54]  The only bar to F.G. adopting the children was that he was a homosexual.  After F.G. won at the trial level, the state appealed and lost.[55]  In the appellate court decision, the court held that the ban against homosexuals adopting had no rational basis and violated the equal protection clause of the state’s Constitution, which is similar to the Federal Constitution’s Equal Protection Clause though somewhat more expansive.[56][57]  The Florida clause reads:

All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.[58]

The Federal Constitution’s Equal Protection Clause is much shorter, but the sentiment is the same:  “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[59]  “F.G. successfully argued . . . the statute treated him unequally in violation of the constitutional provision because the statute creates an absolute prohibition on adoption by homosexual persons, while allowing all other persons—including those with criminal histories or histories of substance abuse—to be considered on a case-by-case basis.”[60]  Both the trial court and the appellate court found that the Florida statute violated F.G.’s constitutional rights.[61]  And they did so using the minimum rational-basis review instead of an intermediate or strict scrutiny analysis.[62]  The state stipulated that it would have granted the adoption but for the statute barring homosexuals from adopting.[63]  “Simply put, the statute calls for an individual, case-by-case evaluation to determine if the proposed adoption is in the best interest of the child.  Except for homosexual persons, there is no automatic, categorical exclusion of anyone from consideration for adoption.”[64]

To demonstrate how quickly the law in this area changes, the decision in F.G.’s case came only six years after the U.S. Court of Appeals for the Eleventh Circuit upheld Florida’s statute finding that the law did not violate equal protection in a case that was factually similar to F.G.’s.[65]  Steven Lofton, was a registered pediatric nurse who raised from infancy three Florida foster children with HIV.[66]  All sides agreed he was a great foster parent and his adoption would have been approved but for the Florida statute.[67]  Or, as the appellate court wrote, “By all accounts, Lofton’s efforts in caring for these children have been exemplary.”[68]  Yet, the Eleventh Circuit, unlike the Florida appellate court six years later, did not find the statute to violate Lofton’s equal protection rights.[69]  The court said that adoption is not a right and that the state has a duty to determine the best parents for the child.[70]

In short, a person who seeks to adopt is asking the state to conduct an examination into his or her background and to make a determination as to the best interests of a child in need of adoption.  In doing so, the state’s overriding interest is not providing individuals the opportunity to become parents, but rather identifying those individuals whom it deems most capable of parenting adoptive children and providing them with a secure family environment.[71]

However, the court’s view missed the mark.  No one is arguing that the state does not have the power to deny someone the ability to adopt a child.  The problem rests in that the denial was a blanket denial based on a person’s sexual orientation without any consideration whatsoever concerning the fitness of the homosexual seeking to adopt to be able to parent the child in question.  A gay or lesbian petition should, under federal and state equal protection clauses, be afforded the same opportunity of an individualized review given to heterosexual petitioners.  It is quite possible that a person’s homosexual lifestyle could be a bar to adopting a child just as a heterosexual lifestyle could also be a bar to adoption.  However, a person should not be denied the ability to adopt simply because he or she is a homosexual any more than a person should be denied because he or she is a heterosexual.

The Equal Protection Clause argument has been successfully used in other homosexual issues outside the adoption context, as well.  For example, voters in Colorado “adopted by statewide referendum, ‘Amendment 2’ to the State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships.’”[72]  The U.S. Supreme Court, in the 1996 case of Romer v. Evans, said the amendment was unconstitutional on Equal Protection Clause grounds.  “Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective.  It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.”[73]  Yet, somehow, when courts apply the Equal Protection Clause in the adoption context, judges seem to forget this maxim spelled out in Romer v. Evans.  When it comes to adoption, many judges and lawmakers seem to think a “status-based classification of persons undertaken for its own sake” is acceptable under the Equal Protection Clause.

C.    Due Process

Another part of the Fourteenth Amendment that should be briefly addressed is the Due Process Clause: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”[74]  More specifically, we are talking about the privacy right the Court has repeatedly said exists within the Due Process Clause.  Or, as David Meyer explained, “The constitutional right of privacy, the Supreme Court has written time and again, demarcates a ‘private realm of family life which the state cannot enter.’”[75]  However, it would seem somewhat counterintuitive to try to use a privacy right when it comes to the adoption context.  After all, adoption is not a right nor is it a private act.  Adoption is wholly a creature of the state and exists for the benefit of the child, not the adult claiming the right.  As Lynne Marie Kohm explained, “The focus of adoption . . . exists primarily to serve the interests of adoptive children by generally fostering a caring family environment for children in need of stable families.”[76]  Or, as the Eleventh Circuit put it, “Because there is no fundamental right to adopt or to be adopted, it follows that there can be no fundamental right to apply for adoption.”[77]

Still, there have been some successes using a due process argument.  For example, in Arkansas v. Cole, the state’s Due Process Clause was used to overturn a state law prohibiting same-sex couples from adopting.[78]  While the state’s due process law was used, a similar result might occur using the Federal Constitution’s Due Process Clause.  The Arkansas law began life as a statewide ballot initiative on Nov. 8, 2008, which passed with 57 percent of the vote.[79]  The wording of the law prohibited unmarried cohabitating couples from adopting.[80]  While the law stated that it applied equally to opposite-sex couples and to same-sex couples, it was clear the law was geared toward preventing same-sex couples from adopting because same-sex couples could not marry in Arkansas.  In 2010,

the circuit court found that Act 1 “significantly burdens non-marital relationships and acts of sexual intimacy between adults because it forces them to choose between becoming a parent and having any meaningful type of intimate relationship outside of marriage.  This infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas.”[81]

The Arkansas Supreme Court agreed with the trial court.[82]  In its 2011 holding, the court said that the statute in question violates a fundamental right because its requirement that couples be married before fostering or adopting children forces couples to choose between the two.[83]

The exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children.  The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic.  They must chose [sic] either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.[84]

This comes from a court that has ruled there is no constitutional right to privacy enumerated in the Arkansas Constitution.[85]

One argument against using a due process argument as a way of overturning state proscriptions against same-sex adoption is that adoption is not a fundamental right.  It is a privilege and the whole point of the adoption procedure is not so parents can have children, but so that children can have a safe and loving home to call their own with parents who will love and care for them.  In other words, adoption is about the children, not the parents.  However, the Arkansas Supreme Court deftly dismissed that notion.  Said the justices, “The United States Supreme Court has rejected the concept that constitutional rights turn on whether a government benefit is characterized as a ‘right’ or as a ‘privilege.’”[86]  The justices went on to talk about the U.S. Supreme Court’s holding in Sherbert v. Verner.[87]  In Verner, the appellant was a member of the Seventh-day Adventist Church and would not work on Saturdays.[88]  Because of this, her South Carolina employer fired her and she was unable to find other work because of her refusal to work Saturdays.[89]  She filed for unemployment compensation but was denied because of her refusal to work on Saturdays.[90]  The South Carolina Supreme Court agreed because, as it said, her decision to not work on Saturdays was voluntary and denial of unemployment compensation in no way interfered with her fundamental right to practice her religion.[91]  The United States Supreme Court, however, disagreed.[92]  In its ruling, the Supreme Court said,

Here not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable.  The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.[93]

The Cole court then said that just because adoption is a privilege does not mean the state can burden those seeking adoptions.[94]

Like the provision in the South Carolina Compensation Act, Act 1 exerts significant pressure on Cole to choose between exercising her fundamental right to engage in an intimate sexual relationship in the privacy of her home without being eligible to adopt or foster children, on the one hand, or refraining from exercising this fundamental right in order to be eligible to adopt or foster children, on the other. Similar to conditioning compensation benefits in Sherbert on foregoing religious rights, the condition placed on the privilege to foster or adopt thwarts the exercise of a fundamental right to sexual intimacy in the home free from government intrusion under the Arkansas Constitution.[95]

Because Cole was decided just a year ago, it is unclear if the due process argument will gain traction.  If so, it will be an uphill climb given that lower federal and state courts have concluded that the right of privacy does not include a right to adopt children.  Meyer explained it this way: “Whatever protection the privacy right might afford against state destruction of established family relations, these courts have held, the Constitution cannot be construed to entitle a claimant to the state’s affirmative assistance in forming an adoptive relationship.”[96]  Or, as the Ninth Circuit put it in Mullins v. State of Or., “A negative right to be free of governmental interference in an already existing familial relationship does not translate into an affirmative right to create an entirely new family unit out of whole cloth.”[97]  However, because of the Arkansas Supreme Court’s decision inCole, those looking to challenge bans on same-sex adoption can take another look at a possible Due Process Clause challenge.

D.    Full Faith And Credit Clause

While a challenge to bans on same-sex adoption using either the Due Process Clause or the Equal Protection Clause shows some promise, there is yet a third federal constitutional path that could be taken and that is the Full Faith and Credit Clause.  This would be less ideal than settling the matter constitutionally using the Due Process Clause or the Equal Protection Clause.  However, this could be helpful when those challenges fail. The Constitution states that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.  And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof”[98]  Emily Sack explained how important the clause was to the Framers of the Constitution: “The Framers viewed the recognition of one state’s laws, records, and judgments by all other states as necessary to their mission of uniting the states into one country.”[99]  Also, the Supreme Court often has explained the importance of the Full Faith and Credit Clause.

The very purpose of the full-faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.[100]

Under the most basic use of the Full Faith and Credit Clause, a marriage, at least a traditional marriage between a man and a woman, in one state must be fully recognized by every other state in the Union.  Another example would be that one state’s birth certificates or driver’s licenses must be recognized as valid by every other state.  In the adoption context, when one state declares that a familial relationship exists, at least in the traditional sense of a married man and woman adopting a child, then the other states, under this clause, must recognize that relationship.  However, when it comes to nontraditional situations, such as same-sex couples marrying or adopting, then the states that do not permit those things have been unwilling, or at least reluctant, to give those situations the full legal affect that the Full Faith and Credit Clause appears to demand.  To get around the clause, these courts often use the “public policy exception,” which has been created by the case law.[101]  Or, as Sack explained in a 2005 symposium:

The theory of the public policy exception is that where a state has expressed a strong policy regarding an issue, its own sovereignty would be infringed if it were forced to grant full faith and credit to another state’s law or judgment that embodies a policy deeply contrary to its own. In these situations, the forum state should be able to invoke the public policy exception to avoid the requirements of full faith and credit.[102]

However, she explained further, the law surrounding the common-law idea of a public policy exception is quite unsettled in many areas and it “is a limited exception to the general application of the Full Faith and Credit Clause, and the standard for finding a state’s public policy sufficiently strong to refuse full faith and credit is quite high.”[103]

Despite the escape hatch of the public policy exception, there has been some success in using the Full Faith and Credit Clause to force states to recognize adoptions by same-sex couples.  In 2007, the Tenth Circuit accepted the argument in Finstuen v. Crutcher that the Full Faith and Credit Clause required the state of Oklahoma to recognize the adoptions by same-sex couples that took place in other states.[104]  In that case, the state had an amendment to its statute governing out-of-state adoptions.[105]  According to Oklahoma statute § 7502-1.4, the “state, any of its agencies, or any court of this state shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.”[106]  The amendment was enacted after a same-sex couple in Washington state, Greg Hampel and Ed Swaya adopted a child born in Oklahoma.[107]  The men, who had no intention of ever moving to Oklahoma, nonetheless wanted the birth certificate amended to show both fathers’ names because they planned to visit the state regularly to allow the child to visit its biological mother.[108]  The attorney general of the state issued an opinion at that time that the Full Faith and Credit Clause required the state to recognize any valid out-of-state adoption decree so an amended birth certificate with both fathers listed was issued.[109]  A month later, the state legislature amended the law to prevent that from happening.[110]  Three same-sex couples and their adopted children, includingHampel and Swaya, challenged the new statute.[111]  The argument against using the Full Faith and Credit Clause in situations such as this, and the argument the state made in this case, is that requiring Oklahoma to recognize adoptions by same-sex couples against its own policy decisions “would be tantamount to giving the sister state control over the effect of its judgment in Oklahoma.”[112]  Essentially claiming a public policy exception.  However, the Tenth Circuit did not buy that argument.[113]  According to the court, “[W]ith respect to final judgments entered in a sister state, it is clear there is no ‘public policy’ exception to the Full Faith and Credit Clause.”[114]

While the Tenth Circuit in Finstuen appears to have it right, there is not complete agreement.  The Fifth Circuit, for example, considered a similar case and reached a different conclusion.[115]  In Adar v. Smith, two unmarried men legally adopted a Louisiana-born infant in New York.[116]  When Mickey Smith and Oren Adar petitioned the state of Louisiana to reissue the boy’s birth certificate, supplanting their names in the places of the biological parents, the state refused despite a state law that mandates the reissue of a new birth certificate when presented with a valid adoption decree from a foreign jurisdiction.[117]  The trial court said the state’s decision to deny a revised birth certificate was a violation of the Full Faith and Credit Clause.[118]  The Fifth Circuit disagreed.[119]  It held that the Full Faith and Credit Clause merely required that Louisiana accept the adoption by not relitigating the matter.[120]  It did not, however, put a requirement on Louisiana to alter any of its public records.[121]

The Registrar concedes it is bound by the New York adoption decree, such that the parental relationship of Adar and Smith with Infant J cannot be relitigated in Louisiana.  That point is not at issue here. There is no legal basis on which to conclude that failure to issue a revised birth certificate denies “recognition” to the New York adoption decree.[122]

The Fifth Circuit specifically refuted the Tenth Circuit’s holding in Finstuen v. Crutcher.[123]

Finstuen is distinguishable not only because the Registrar here concedes the validity of Infant J’s adoption but because Louisiana law, unlike Oklahoma law, does not require issuing birth certificates to two unmarried individuals.  The “enforcement measure”—issuance of a revised birth certificate—is thus critically different in the two states.[124]

This reason appears to be sophistry.  Had the couple been a traditional man and woman, the law would clearly have required the state to reissue an amended birth certificate: “When a person born in Louisiana is adopted in a court of proper jurisdiction in any other state or territory of the United States, the state registrar may create a new record of birth in the archives upon presentation of a properly certified copy of the final decree of adoption.”[125]  The Tenth Circuit, however, essentially said that because Louisiana does not allow same-sex couples to adopt it is not required to issue new birth certificates when a Louisiana child is adopted out of state by a same-sex couple.  This would seem to eviscerate the point of the Full Faith and Credit Clause.

The Full Faith and Credit Clause is no panacea.  It is only needed because too many states do not recognize or permit same-sex couples to adopt.  Nor will it help everyone.  Only those who have the means to travel to a different state to adopt will be able to avail themselves of its protections.  Still, it is an available approach until the courts begin applying the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment to same-sex couples wishing to adopt.

IV.  Thesis

In the quest for equality in the adoption field, i.e., permitting same-sex couples to adopt, the ideal situation would be for the state legislatures to enact laws that permit the consideration of same-sex couples on the same playing field as opposite-sex couples.  There is, after all, no scientific basis for denying same-sex couples the right to adopt solely based on their relationship status.  Nor should religious or moral objections be the basis for denying same-sex couples the right to adopt.  We are constitutional republic, in part, to avoid the kind of problems associated with theocracies.  Not all share the same moral or religious beliefs and it is anathema to a free society to use the force of law to compel someone to adhere to a specific religious or moral objection or philosophy.  Same-sex couples should have the same liberty interest in adopting and rearing children as opposite-sex couples.  Unfortunately, public opinion in some states makes changing the laws unlikely in the near future.  For example, the 2008 ballot initiative in Arkansas discussed above saw 57 percent of voters cast ballots for a law essentially barring same-sex couples from adopting.  Of course, the law was written in such a way that it prevented unmarried cohabitating couples from adopting, which was really just a way to make the law more constitutionally palatable.  Fortunately, the courts saw through that ruse and found the law unconstitutional.  What it shows, however, is that in some states the public is hostile to the idea of same-sex adoption and the state legislatures are unlikely to go against public opinion on the matter.

This is an important social issue for two reasons.  The first is the large number of children in foster care who are awaiting adoption.  As noted above, many children live in the system until they age out.  More than 100,000 children were awaiting adoption at the end of the federal government’s 2010 fiscal year.[126]  Those who do age out of the system without being adopted are not as successful in life as others their age.[127] Those foster children are more likely than their nonfoster counterparts to end up incarcerated or not going to college.[128]  When one couples that with the scientific studies mentioned above that have found no ill-effects for children reared in homes headed by a same-sex couple,[129] it seems clear that foster children are better off in a permanent home with a same-sex couple than they are living out their childhood within the foster care system.

The second problem is that many states have staked out a middle ground, allowing one person in the same-sex relationship to petition for adoption.  While that does permit the couple to adopt and raise the child, it brings with it its own set of problems.  Because only one of the adults is the legal parent, issues arise in relation to the nonlegal parent who has no rights relative to the child.  For example, the child might be ineligible for health insurance, life insurance, disability benefits, etc., from the nonlegal parent.  If there is no will, the child would not be able to inherit from the nonlegal parent.  Issues also arise when the second, nonlegal parent tries to seek medical care for the child or enroll the child in school.  Also, issues arise when the legal parent dies or is in some way incapacitated.  The nonlegal parent “would have no automatic right to custody or visitation.”[130] Clearly this is not a good solution and can cause more problems than it solves.  Additionally, some states are inconsistent, i.e., “states like New York and Washington that reject same-sex marriage but allow same-sex adoption.”[131]  It would seem logical to want consistency in a state’s own laws concerning same-sex couples.

Clearly, the current situation is undesirable and, with public opinion such as it is, the ideal solution—legislative action—is out of the question.  Therefore, fixing the problem is likely to fall to the courts.  And, as outlined above, there are three paths to the solution, the Equal Protection Clause, the Due Process Clause, and, failing those two, the Full Faith and Credit Clause.

The best solution would be for the courts to recognize that laws against same-sex adoption are violative of the Equal Protection Clause.  Even without a heightened level of scrutiny, i.e., using rational-basis review, it is hard to fathom a legitimate state interest in keeping a child out of a loving, caring home simply because the heads of the household are of the same sex.  Even if we maintain the “best interest of the child” standard, which we should, scientific studies have shown that there is no legitimate reason to bar same-sex couples from adopting, at least not simply because of their sexual orientation.  As noted in the previous section, the use of an equal protection argument has been the most successful way to challenge proscriptions against same-sex couples adopting.  Plaintiffs lodged a successful equal protection complaint under the Florida Constitution in Florida Dept. of Children & Families v. Adoption of X.X.G. (2010).  It is also the same argument that has been used successfully in states where bans against same-sex marriages have been judicially overturned.

If the law can’t be changed through the Equal Protection Clause, there is a slim hope that the privacy component of the Due Process Clause might be useful.  While most courts that have considered the due process argument have rejected it, a recent case, Cole v. Arkansas, discussed above, had the Arkansas Supreme Court finding the state’s law against same-sex couples adopting unconstitutional under the Arkansas Constitution’s Due Process Clause.  The court’s reasoning was that the state was requiring couples to alter their personal sexual relationship as a prerequisite to adopting.  At least one federal court since Cole v. Arkansas rejected that argument.  Still, it could prove a viable alternative if equal protection arguments fail to change the law.

Finally, if neither of the above options work, same-sex couples wishing to adopt but unable to in their own state, might consider adopting in another state.  “Statutes in only seventeen states require state residency as an eligibility requirement for adoption.”[132]  So the same-sex couple wishing to adopt could seek out a state that permits same-sex adoption but does not have a residency requirement.  “This path of adoption, however, is less than ideal as a long-term solution for many reasons, the primary one being the many logistical complications necessarily entailed.  Moreover, widespread use of this option may lead to the enactment of residency restrictions by additional states.”[133]  Still, those with the means could pursue that route.  However, after adopting in the second state, the new parents will want the adoption at least recognized in the home state.  This is where the Full Faith and Credit Clause should be used by the courts to require the home state to recognize the out-of-state adoption.  This, of course, would be an argument of last resort given that the goal should be to have same-sex adoptions recognized in all U.S. jurisdictions.

V.  Conclusion

With the large number of children awaiting adoption out of the public foster care system, the negative effect the foster care system has on children, and the scientific evidence that children of same-sex couples are no worse off than children of opposite-sex couples, it only makes good public policy sense to allow same-sex couples the ability to adopt children.  While the ideal solution would be to achieve this change legislatively, the reality is that the judicial route is likely to be more successful in convincing legislatures to change their laws as it has in a few states already.  Therefore, it is incumbent for the courts to take the lead on this issue and do the right thing, namely permit same-sex couples the same ability to adopt as opposite-sex couples by granting them equal protection under the law.

 

---