Kari El Hong California Western Law Review, Vol. 40, No. 1,
2003
Abstract:
Arkansas, Florida, Mississippi, and Utah have laws or regulations prohibiting gay men, lesbian women, same-sex couples, or single parents (heterosexual and homosexual) from serving as adoptive or foster parents. In court filings, Arkansas, Florida, and Utah justify their bans by contending that married couples are the optimal families in which to raise children because families headed by gay or single parents produce children who are more likely to be violent, miscreant, immoral, sexually promiscuous, or gay. These arguments, however, are contrary to all scientific findings made by mainstream child advocacy organizations and medical societies. These adoption bans further present a radical break from contemporary adoption placement practices by eschewing reliance on individualized findings with respect to whether a particular person can provide emotionally and financially for a specific child and instead deems a parent presumptively unfit based on with whom he or she does – or does not – reside.
A 150-year overview of adoption practices in the United States reveals that social reformers, government officials, and private vigilantes have misused the institution of adoption, removing children from their biological families if the parents were imputed to be morally or culturally inferior. As adoption was once the selected vehicle by which children were removed from immigrant, poor, and Native American homes – families who were considered deviant because they failed to conform to the social reformers’ ideal nuclear family – the contemporary adoption bans are used to prevent today’s “morally deficient” families from receiving children. The bans against gay parents are elucidated as repeating implicit mores in adoption practices: a parent can adopt a child within or below her caste, but never above it. Reviving the Eugenic Era’s mandate to save children from their parents’ moral pollution, the adoption bans thus are not providing for child welfare; rather, they are engaged in a much larger, and questionable, project.
Until the 1960s, the States exercised control over the means by which children were brought into families by denying access to contraception (Griswold and Eisenstadt) and abortion (Carey and Roe). These laws were invalidated because they unlawfully interfered with an individual’s decision to start a family. The adoption bans constitute analogous and impermissible constraints over a citizen’s ability to form a family by capriciously preventing a class of individuals from parenting the children over which the State may still lawfully regulate: foster care and adoption placements.
Likewise, in the foster care context, Bell v. Burson, Stanley v. Illinois, and Smith v. OFFER prohibit a state from codifying an irrebuttable presumption of unfitness in the law. A fatal flaw of the adoption bans is that they circumvent a sophisticated process to which every other prospective parent is subjected: an extensive home study and assiduous evaluation to determine whether a parent’s behavior, conduct, lifestyle, and judgment will harm a child. Under Department of Agriculture v. Moreno, when an existing administrative procedure addresses a particular social problem, any superfluous measure aimed at only a small subset of the population becomes suspect. The contemporary foster care bans are revealed to be impermissible pretexts for invidious discrimination.
PDF of: Parens Patri[Archy]: Adoption, Eugenics, and Same-Sex Couples
