Same-Sex Adoptions

Same-Sex Adoptions
Alison M. Smith
Legislative Attorney
American Law Division
Summary
State laws concerning the eligibility of homosexuals to adopt vary. Some states
statutorily prohibit such action, while others are silent on the issue, leaving
interpretation to the courts. This report summarizes state laws concerning non-relative
adoption by homosexual individuals and couples. The report will be updated as
developments warrant.
Consistent with other areas of family law, adoption statutes are promulgated by state
legislatures in accordance with public policy considerations that often include providing
for the best interests of the child, achieving finality in the placement of children and
promoting stability in family relations. Thus, individual states have different statutes
regarding non-relative adoption by homosexual individuals and couples.¹
Most states currently permit an individual gay or lesbian adult to adopt a minor child
subject, as in any adoption, to a finding by a judge, that adoption by that individual is in
the child’s best interest.² State statutes concerning the eligibility of homosexuals to adopt³
range from Florida’s statutory prohibition on homosexual individuals adopting to
Mississippi’s statute barring adoption by same-sex couples⁴ to Utah’s prohibition on

¹ The related issue of second-parent adoption is beyond the scope of this report. A second-parent
adoption is a legal procedure which allows a same-sex co-parent to adopt his or her partner’s
child.
² Numerous factors converge and influence this standard, including the home environment,
stability of the parents, the time a parent and child spend together, the quality of the relationship
between parent and child, sexual conduct and criminal background of the parents, as well as other
factors the court deems appropriate. See 2 Am. Jur. 2d Adoption § 137. Florida is currently the
only state which prohibits homosexual individuals from adopting. Fla. Stat. Ann. 63.042.
³ Fla. Stat. Ann. 63.042 (3).
⁴ Miss Ann. Code § 93-17-3(5).

cohabitating unmarried couples, heterosexual or homosexual, from adopting.⁵ Many state
statutes are silent on the issue, leaving the subject open to interpretation by courts.⁶ For
example, the Ohio Supreme Court permitted the adoption of a “special needs” child by
a homosexual, stating that there is a need to review adoption applications on a case-by-
case basis without exacting any clear-cut rules regarding homosexual applicants.⁷
Similarly, a New Jersey court allowed a homosexual couple to adopt a special needs child
whom they fostered for approximately two years.⁸
On January 28, 2004, the U.S. Court of Appeals for the 11^th Circuit affirmed a lower
court decision⁹ upholding a Florida statute banning adoption by homosexual individuals.
In Lofton v. Sec. of the Dept. of Children and Family Services,¹⁰ the court found that a
Florida statute denying homosexuals the right to adopt does not violate the constitutional
guarantees of equal protection or due process under the 14^th Amendment of the U.S.

⁵ Utah Stat. § 78B-6-117. The statute does not expressly prohibit adoption by single people, nor
does it ban same-sex couples from adopting from private agencies. On November 4, 2008, voters
in Arkansas approved a similar citizen-initiated statute prohibiting unmarried sexual partners
(both opposite-sex and same-sex couples) from adopting or serving as foster parents.
In a related issue, Oklahoma passed the Oklahoma Adoption Invalidation Law (OK. Stat. Tit. 10
§ 7502-1.4(A)), which prohibits the state from acknowledging adoptions by same-sex couples^th
from other jurisdictions. The 10 Circuit Court of Appeals affirmed a lower court’s ruling that
the law, by its refusal to recognize and give effect to a valid judgment from another court of
competent jurisdiction, which established their status as parents of their respective children,
violates the Full Faith and Credit Clause of the United States Constitution. Finstuen v. Crutcher,^th

496 F.3d 1139 (10 Cir. 2007).

⁶ See, e.g., In re Lace, 516 N.W.2d 678, 686 (Wis. 1994) (barring adoption of mother’s daughter
by mother’s female partner because statutory scheme “balances society’s interest in promoting
stable, legally recognized families with its interests in promoting the best interests of the children
involved.”) see also, e.g., Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993) (holding that
Massachusetts law did not preclude same-sex cohabitants from jointly adopting a child);
Adoptions of B.L.V.B & E.L.V.B., 628 A.2d 1271 (Vt. 1993) (holding Vermont law does not
require the termination of a natural mother’s parental rights if her children are adopted by a
person to whom she is not married, if it is in the best interests of the children).
⁷ In re Adoption of Charles B., 552 N.E. 2d 884 (Ohio 1990). “Special needs” child refers to the
fact that Charles B. suffered from leukemia, possible brain damage from fetal alcohol syndrome,
a low I.Q., and a speech impediment. His natural family abused him and he lived in four different
foster homes. These factors led the court to believe that Charles B. would be better off with his
adoptive parent, a homosexual, instead of in an institution or moving from foster home to foster
home. Id.
⁸ See, Joyce F. Sims, “Homosexuals Battling the Barriers of Mainstream Adoption-And
Winning,” 23 T. Marshall L. Rev. 551, 581 (1998). Subsequently, the parties entered into an
agreement in which gay and unmarried couples will be measured by the same adoption standards
as married couples. Furthermore, no couple could be barred from adoption based on their sexual
orientation or marital status.
⁹ Lofton v. Kearney, 157 F.Supp.2d 1372 (S.D. Fla. 2001).
¹⁰ 358 F.3d 804 (11^th Cir. 2004). This marked the first time a federal appellate court addressed
the constitutionality of banning adoption by homosexual individuals.

Constitution.¹¹ In addressing the plaintiffs’ due process claim, the court emphasized that
there is no fundamental right to adopt, nor a fundamental right to be adopted as adoption
is a privilege created by statute and not by common law.¹² Thus, the court reasoned there
can be no fundamental right to apply for adoption.¹³ As such, the liberty interest
biological parents enjoy in raising their children without state interference could not be
extended to a foster parent or guardian based merely on the existence of strong emotional
ties between the foster parent or guardian and the child.¹⁴
Moreover, the court rejected plaintiffs’ argument that the Supreme Court’s decision
in Lawrence v. Texas,¹⁵ identified an unarticulated fundamental right to private sexual
intimacy. The court stated that it was “hesitant to infer a new fundamental liberty interest
from an opinion whose language and reasoning are inconsistent with standard
fundamental-rights analysis.”¹⁶ The court noted the absence of “two primary features” of
fundamental-rights analysis in the Lawrence decision.¹⁷ First, the court stated that the
Lawrence opinion contained “virtually no inquiry into the question of whether the
petitioners’ asserted right is one of those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept
of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.”¹⁸ Second, the court noted that the Lawrence opinion “notably never provides
the careful description of the asserted fundamental liberty interest” that is to accompany
fundamental-rights analysis.¹⁹
Moreover, the court found that the holding of Lawrence did not control in the
adoption context as Lawrence was limited to consenting adults and a criminal prohibition.
The court reiterated that the relevant state action was not a criminal prohibition, but a
grant of a statutory privilege. In addition the court stated that “the asserted liberty interest
is not the negative right to engage in private conduct without facing criminal sanctions,
but the affirmative right to receive official and public recognition.”²⁰ Therefore, the court

¹¹ Id.
¹² Id. at 809-811.
¹³ Id.
¹⁴ Id.
¹⁵ 539 U.S. 558 (2003) (holding that substantive due process does not permit a state to impose
a criminal prohibition on private consensual homosexual conduct between adults). For a legal
analysis of this decision, refer to CRS Report RL31681, Homosexuality and the Constitution: A
Legal Analysis of the Supreme Court Ruling in Lawrence v. Texas by Jody Feder.
¹⁶ Lofton v. Sec. of the Dept. of Children and Family Services, 358 F.3d 804, 816 (11^th Cir. 2004).
¹⁷ Id.
¹⁸ Id.
¹⁹ Id.
²⁰ Id. at 817.

concluded that the Lawrence decision could not be extrapolated to create a right to adopt
for homosexual persons.²¹
Addressing the equal protection argument, the court rejected the plaintiffs’ assertion
that the court should apply strict scrutiny in analyzing the statute. The court noted that
as Florida’s adoption statute burdens no fundamental right nor suspect class, the
appropriate standard of review was rational basis. The court found that Florida has a
legitimate interest in encouraging a stable and nurturing environment for the education
and socialization of its adopted children.²² In addition, the court reasoned that the state has
a legitimate interest in encouraging an optimal family structure by seeking to place
adoptive children in homes that have both a mother and father.²³
The court rejected appellants’ argument that the statute was not rationally related to
this interest by noting that “it is entirely irrelevant for constitutional purposes whether the
conceived reason for the challenged distinction actually motivated the legislature.”
Moreover, the court stated that neither the fact that a statutory classification may be
overinclusive or underinclusive nor the fact that the generalization underlying the
classification is subject to exception renders such a classification irrational, for purposes
of equal protection.²⁴ Instead, the court stated that the question “is whether the Florida
legislature could have reasonably believed that prohibiting adoption into homosexual
environments would further its interest in placing adoptive children in homes that will
provide them with optimal developmental conditions.” The court found that there are
plausible rational reasons for the disparate treatment of homosexuals under Florida
adoption law.
Finally, the court noted that “any argument that the Florida legislature was misguided
in its decision is one of legislative policy, not constitutional law. The legislature is the
proper forum for this debate, and we do not sit as a superlegislature ‘to award by judicial
decree what was not achievable by political consensus.’”
On January 10, 2005, the United States Supreme Court, without comment, declined
to hear the case.²⁵

²¹ Id.
²² Id. at 818.
²³ Id.
²⁴ Id. at 819.
²⁵ 358 F.3d 804 (11^th Cir. 2004), pet. for cert.denied 73 U.S.L.W. 3399.