Homosexual Rights and the Placement of Children

By Patterson, Elizabeth | Policy & Practice, March 2004 | Go to article overview

Homosexual Rights and the Placement of Children


Patterson, Elizabeth, Policy & Practice


Should gay and lesbian couples be allowed to adopt children? Agencies that place children in foster and adoptive homes can become embroiled in contentious legal and political battles concerning the rights of homosexuals in response to the question if homosexual individuals or couples seek to have children placed in their homes. The agency's mission, of course, is to base placement decisions on the best interests of the child. Agency policies and procedures to this end must, however, be politically and legally defensible.

Traditional Legal Principles

Most states allow either an individual or a married couple to adopt a child. Adoption by two persons not married to each other is not permitted.

Absent a specific prohibition, a child may be placed with a homosexual individual, including an individual who resides with a homosexual partner.

Legalization of Homosexual Partnerships

At least four states (California, Hawaii, Massachusetts, and Vermont), though, authorize marriage or an equivalent civil union for homosexual couples. If a state allows homosexuals to marry, these couples must be allowed to adopt on the same terms as any other married couple.

If a state authorizes some form of civil union rather than marriage per se, the couple can adopt only if the statute authorizing the civil union so provides. Most of these statutes were enacted in response to judicial decisions requiring as a matter of equal protection that same-sex couples have access to the legal benefits of marriage, which would normally include the legal right to adopt.

Adoption Law Responds

Through either statutes or case law, some states have modified their adoption laws to specifically address homosexual adoption. While some have broadened homosexuals' right to adopt, others have moved in the opposite direction, specifically prohibiting homosexual adoption. Some of these merely restate existing law by prohibiting same-sex couples and cohabiting couples from adopting. However, a few also prohibit adoption by homosexual individuals or by any individual in a cohabiting relationship.

In the case of Lawrence v. Texas, decided last year, the U.S. Supreme Court increased constitutional protection against discrimination for homosexuals. Although the issue in that case was quite different, the court announced as a general principle that the law cannot treat homosexuals differently simply because they or their lifestyle are viewed as immoral. …

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