Equality in Marriage May Not Bring Equality in Adoption

For gay couples, winning the battle for legal rights would be just the first step toward securing full recognition for their families.

Obergefell v. Hodges plaintiffs April DeBoer and Jayne Rowse pose with their four children. (Mario Anzuoni / Reuters)

Reverend Matthew Bode has been with his husband since 2010, after the two met through mutual friends in the Michigan community where they do social-justice work. In 2013, they wed at a public religious ceremony attended by loved ones. Both men knew they wanted to be parents at some point, though neither felt the need to have a biological child. So, about a year and a half ago, they started to foster children in Detroit, a city Bode has called home since 2002. He and his husband are now in the process of adopting two girls—sisters—whom they fostered. But because Michigan does not allow unmarried couples to adopt, nor recognizes gay marriage, Bode’s husband is the one adopting as a single parent.

“We are holding our breath,” Bode admits. “We’re hoping for the best and planning for the worst, which is what many LGBT families are forced to do in the current system.”

With the Supreme Court set to rule on gay marriage in June, couples like Bode and his husband may not have to wait much longer for complete marriage equality. Yet, the adoption landscape in the United States is so fractured that a win for same-sex marriage might not translate to an immediate win for same-sex adoption. Legal experts say it will take time for certain states to adjust to a federal ruling that would require them to recognize gay marriages—and thus, gay adoptions—including those performed out-of-state. Establishing equality before the law would only be the first step, as it has been for other minority groups in the U.S. Lived equality will require much deeper social changes.

“Even if we have a Supreme Court ruling that says all 50 states have to recognize marriage for same-sex couples, we’re still likely going to have implementation issues that will take time, maybe even years, to solve,” says Emily Hecht-McGowan, director of public policy at the Family Equality Council, a nonprofit organization devoted to LGBT parenting. “There are states that are less excited about implementing marriage equality, and there are places where it will be difficult to work with adoption administrators and officials to get them to recognize the rights of parentage that flow from marriage.”

Under the status quo, laws that restrict gay couples from marrying have created unorthodox family structures, at least on paper. Take April DeBoer and Jayne Rowse, a Michigan couple. The pair has four adopted children, but none of them legally belongs to both women: two are DeBoer’s and the other two are Rowse’s. The Supreme Court is considering their family situation in Obergefell v. Hodges, a consolidation of six cases from four states that asks whether the Fourteenth Amendment demands same-sex marriage.

While the justices ponder that question, families like the DeBoer-Rowses remain especially vulnerable to accidents and medical emergencies. If one of the mothers were to die or be otherwise incapacitated, there’s no way to be sure that the second parent would get custody of the two children who had been adopted by the first; a judge could hand them over to someone else. That possibility has caused LGBT families tremendous anxiety. When the DeBoer-Rowses had a near-miss with a truck driving on the wrong side of the road at night, they began to create wills and trusts to benefit their kids. They could dictate the disposition of their assets, they realized, but not of their children themselves. (Justices Roberts and Thomas may be sympathetic—both men have adopted children of their own.)

But same-sex marriage bans harm families with LGBT parents in other ways, too. The Sixth Circuit appeared to recognize these harms last year when it wrote in DeBoer v. Snyder, the suit filed by April and Jayne, that the traditional definition of marriage “deprives [gay couples] of benefits that range from the profound (the right to visit someone in a hospital as a spouse or parent) to the mundane (the right to file joint tax returns).” Then there are psychological harms to the children of gay couples, largely caused by the stigma associated with having parents whose relationship is considered to be legally or morally inferior. A 2008 report found that 42 percent of students with LGBT parents said they had been verbally harassed at school in the past year due to their parents’s sexual orientation, with more than a third of students saying they had been harassed about their own. Almost a fifth of these students experienced LGBT-related physical attacks during the same period.

Several states forbid gay couples from jointly adopting. This can happen explicitly, as in Mississippi (“adoption by couples of the same gender is prohibited”), or effectively, as in Michigan and Louisiana—where gay marriage isn’t legal, and adoption is unavailable to unmarried couples. Socially conservative states have often used indirect approaches to hinder gay and lesbian parents, says Sarah Warbelow, legal director of the Human Rights Campaign, a civil-rights organization for LGBT people. In places like Nebraska, Kentucky, and Ohio, adoption laws are silent—there are no overt restrictions on the ability of LGBT people to adopt, but also no guarantees that they won’t be at a disadvantage throughout the process. The Movement Advancement Project, a think tank, calculates that 23 percent of the total LGBT population lives in states where joint adoption is uncertain for this reason.

“There haven’t been many legal barriers to an LGBT person adopting on their own,” Warbelow explains. “But when it comes to couples adopting, what we’ve seen in many states is a patchwork where some judges interpret the laws to be permissive of LGBT couples, and others do not.”

Susan Sommer, director of constitutional litigation for Lambda Legal, a gay-rights organization, says some states do not give “full faith and credit” to same-sex adoptions originating in other states. This can create an interstate issue when LGBT families relocate. Sommer is representing the plaintiffs in Henry v. Hodges, one of the Obergefell cases that arose in Ohio. While she hopes the Supreme Court will rule in favor of the petitioners, it may still take time to ensure that all states apply presumptions of legal parentage linked with marriage to LGBT parents who aren’t biologically related to their spouses’s children.

“If we win marriage equality nationwide, it would still be wise for people to do second-parent adoptions [making non-biological parents legally recognized ones], at least until things simmer down and the adoption landscape is clearer,” Sommer advises.

Further clouding that landscape are state bills which have sought to bar gay couples from adopting, in the name of religious liberty. Florida, Alabama, and Michigan have each considered such bills as recently as April. If enacted, this legislation would allow private agencies to refuse to place children in adoptive or foster homes that violate those agencies’s moral beliefs—not unlike Indiana’s Religious Freedom Restoration Act, which many argued would have permitted discrimination against LGBT people in businesses. Hecht-McGowan of the Family Equality Council contends that these “conscious-clause laws” put the interests of third-party service providers above those of youth and parents, and so create obstacles to secure, happy families. (Notably, in certain states like Alabama, even private adoption agencies retain public contracts, meaning they’re partially supported by taxpayer dollars.)

Though there may be a hodgepodge of state-adoption laws, social-science research over the past three decades has made one thing clear: Good same-sex parenting leads to positive outcomes for children and families. One study from 2010 found that, on average, children adopted by LGBT couples were as well-adjusted as those adopted by heterosexual couples. Similarly, a 2008 literature review of 19 studies sampling more than 1,000 total families showed there were no major differences between same-sex and heterosexual parents with respect to children’s cognitive development, gender identity and behavior, psychological adjustment, and sexual preferences. When the American Academy of Pediatrics came out in support of gay marriage in 2013, it declared that “adoption or foster parenting should be available without regard to the sexual orientation of the parent(s).”

Despite that consensus, if the Supreme Court does find a right to marriage equality embedded in the Constitution, and most of the legal hurdles faced by LGBT couples fall, social barriers may prove more difficult to remove. After all, it wasn’t long ago that nearly two-thirds of Americans opposed same-sex adoption: In 1994, only 28 percent of Americans said gay couples should have the legal right to adopt a child, according to Gallup. Although public opinion has flipped since then, with 63 percent of Americans saying they supported gay adoption last year, that national shift in belief can play out unevenly at the local level.

According to Gary Gates, research director of the Williams Institute at the UCLA School of Law, same-sex couples are three times as likely as their different-sex peers to be raising an adopted or foster child. Gates adds that there are important differences between married and unmarried gay couples as well: For example, the median income of the former group is 27 percent higher than that of the latter. This suggests that married gay couples have greater resources available to support stable families than their unmarried peers.

“One of the concerns I have is that if the public adoption system doesn’t fully open to [unmarried gay] couples, parenting will be confined to a very privileged group among LGBT people,” Gates says. “As adoption becomes a bigger method for LGBT people to have kids, we have to think through what that will mean.” That’s a challenge marriage equality may be more likely to exacerbate than to solve.

Nearly 27,000 gay couples in the U.S. are raising 58,000 adopted or foster children. But about twice as many children are in need of permanent homes; according to the U.S. Department of Health and Human Services, more than 100,000 were waiting to be adopted as of October, 2013. Advocates argue that state laws which prohibit or discourage same-sex couples from providing those homes diminish child welfare. As the Donaldson Adoption Institute, a nonprofit based in New York that researches adoption policy, noted in its amicus brief to the Supreme Court in Obergefell, “many of these children have not already been adopted because they have serious medical, emotional, or psychological needs.”

April Dinwoodie, chief executive of the institute, says it will be necessary in some cases to shift the perceptions, behavior, and training of adoption professionals in regards to adoptions by gay and lesbian individuals. “Applying what we know from research and experience to say that children don’t suffer when they’re in non-traditional families needs to be a practical next step,” Dinwoodie contends.

Until then, the decision to start or grow a family will remain a fraught one for many gay couples, even if they are married. Ellen Kahn, director of the children, youth, and families program at the Human Rights Campaign, says she often hears from couples who are anxious about being denied a child due to their sexual orientation. While there’s been a lot of progress, Kahn says some adoption agencies don’t want to place children with gay couples, especially in states where marriage equality doesn’t exist. She adds that a “hierarchy of placement” which prioritizes “a married mom and dad” over other kinds of families can set up LGBT couples to fail.

“Some adoption agency staff members are still conflicted about whether it’s good for children to have two moms or two dads,” Kahn explains. “Putting a child under that mix is not something everyone embraces. It can be a huge educational learning curve for people.”