Throwing Black Babies Out with the Bathwater: A Child-Centered Challenge to Same-Sex Adoption Bans

Abstract

The recent enactment of Arkansas' same-sex adoption ban and pending bans in Tennessee and Kentucky has reignited the national debate around same-sex adoption. This Article advances an orphan-centered constitutional challenge to same-sex adoption bans that highlights their impact on orphans generally and on Black orphans in particular. In one state, Florida, a judge ruled recently that Florida's ban on same-sex adoption violated the constitutional rights of prospective adoptees and prospective parents. The focus in this decision on the infringement of orphans' rights marks a departure from the focus of previous challenges, which emphasized the individual rights of prospective parents. This Article asserts permanency, and the stability and security that permanent placement provides, as interests embraced by the best interests of the child standard and protected against state infringement by constitutional guarantees. It asserts that orphans possess a negative liberty interest in freedom from state action that categorically forecloses adoption without conducting an individualized review of the orphan’s needs and the competencies of the potential parents. This Article's challenge to the constitutionality of these bans is situated within the reality that for many orphans, particularly Black orphans who are overrepresented in the child welfare system and who are more difficult to place, the option is not placement with homosexuals or placement with heterosexuals; rather, it is placement or non-placement. This Article asserts the best interests of the child standard as a restraint on the state's parens patriae authority and, using the comparative harm framework utilized in the transracial adoption context, weighs the documented harm that orphans experience when they remain in extended temporary or institutional care against the documented benefits of adoption by gay and lesbian parents. It concludes that orphan placement bans are an improper exercise of the state's parens patriae authority because they abrogate rather than serve orphans' best interests, and the state has no constitutionally compelling or legitimate justification for implementing categorical bans that foreclose the placement option that best serves orphans' interests.

Keywords: adoption, same-sex adoption bans, race, transracial adoption, children

JEL Classification: K30, K39