Since there has been a lot of chatter about adoption here recently, I thought I’d call attention to this (slowly) developing story: As a result of a voter initiative passed in 2008, Arkansas bans unmarried couples from adopting children. Although it may not be obvious at first, the primary purpose of the ban is to prevent adoption by lesbian and gay couples. The ban has been challenged in court and the story I’ve linked to describes the argument. Here’s an earlier story that provides some of the background of the case.
I’ve discussed the trend towards barring unmarried couple adoption in the past. Barring adoptions by lesbians and gay men–singly or in pairs–has proven to be politically infeasible. Indeed, I think only one state–Florida–has such a law in place. This, too, I have discussed before–the law dates from the Anita Bryant crusade and is currently the subject of litigation in Florida.
In place of an explicitly anti-lesbian/gay adoption policy, a number of states have enacted statutes that prohibit adoption by unmarried couples. Of course, since these states also prohibit marriage between two men and two women, they exclude all lesbians and gay couples from adopting. They also reach unmarried heterosexual couples.
There are therefore two ways to consider the legality of these restrictions: you can analyze them as essentially anti-gay/lesbian adoption provisions with a thin disguise or you can analyze them as they are written–a ban applied to all unmarried couples. Anyone challenging a statute would do well to make both arguments, of course, and that appears to be what happened here.
As you can see, the Arkansas Supreme Court struck down an earlier policy that prohibited lesbians and gay men from becoming foster parents. This suggests that the argument that lesbians and gay men are categorically unfit to parent are less likely to succeed.
Perhaps the key point to note is this–individuals seeking to adopt are already screened by the state. Thus, unless all unmarried couples are likely to be unfit, it’s hard to justify eliminating people without even examining the individuals involved.
Notice that the plaintiffs include couples who would seem to be qualified–even uniquely qualified–the grandmother who is the only relative willing and able to adopt her grandchild now in foster care, say. Even if it is the case that many unmarried couples would be unfit, excluding a fit couple because they, too, are unmarried is unfair.
There’s a bit of irony here. I think it might be more plausible to exclude couples who have chosen not to marry (though I would dispute the propriety of this as well.) You could at least assert that the decision not to marry reflected some quality of the couple that might be important.
Since lesbian and gay couples cannot marry, the group of lesbian and gay unmarried couples includes both couples who would marry if they could and those who would not choose to marry. This being the case, even the argument that choosing not to marry reveals some defect relevant to adoption fails for lesbian and gay couples.
But of course, we’ll have to wait to find out what the judge says.