MORAL REALISM AND THE ADOPTION OF CHILDREN BY HOMOSEXUALS Lynne Marie Kohm

MORAL REALISM AND THE ADOPTION OF
CHILDREN BY HOMOSEXUALS
Lynne Marie Kohm*
Adoption represents the opportunity for a child to be united with a
family for the benefit and best interests of that child. Adoption is, first and
foremost, about children, their future, and the future of our civilization; it is
not about adults. When we debate an issue as important as adoption by
homosexual couples, we must take into account the impact that
homosexuals will have on the adoption process because children adopted
by these people will have parents of the same sex.
This article presents arguments for and against homosexual adoption,
and posits that the “best interests of a child” is achieved when the child is
given the opportunity to have a mother and a father who are married to
each other. The discussion will focus on three areas: Part I explores the
current status of state statutes and case law, as well as the impact of federal
constitutional law on adoption of children by homosexual parents; Part II
compares the pros and cons of homosexuals and homosexual couples
adopting children—the legal considerations, public policy considerations,
and social science considerations; and Part III of this article concludes with
some common sense considerations that concentrate on children as the
priority.
Just as laws of physics govern the universe, whether we choose to
believe them or not, moral and social laws govern human relationships—
whether we choose to believe them or not; nevertheless, laws of nature, like
gravity, operate whether one believes it or not. The same is true of moral
laws. These truths prove themselves, often pragmatically, through time and
*
John Brown McCarty Professor of Family Law, Regent University School of Law,
Virginia Beach, Virginia. This article is in no small part the result of the excellent research
and analysis efforts of my graduate research assistant, Karen Groen. I thank her and Flávia
da Silva-Benson, Business Managing Editor of the New England Law Review, whose
diligence in orchestrating this symposium and in searching out the participants in this debate
caused our paths to cross. This article is dedicated to both of these admirable women, and to
the hope that all children may have an opportunity to be raised by a mother and a father who
are married to each other.
643
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study. This concept is called moral realism. Moral realism clarifies that
some things are morally true whether we choose to believe them or not and
that those truths will be played out in the consequences of the years that
follow. Many of these truths are about children and the best circumstances
under which to raise a child. These issues and considerations reveal a
critical link between our actions today and the health of our future
civilization. In that regard, moral realism requires careful discernment of
laws that concern children.
As a prelude to this discussion, it is appropriate to provide a general
overview of adoption. Adoption laws have historically sought to “promote
adoption of children into situations that are as much like the nuclear family
as possible, and, as a result, to ‘fashion adoption in imitation of
procreation.’”1
Adoption laws in the Roman Empire aimed to “perpetuat[e] political
succession”2 or provide parents with an heir.3 These laws emphasized the
interests of the adult. Thousands of years later, Massachusetts enacted the
first adoption law in the United States in 1851.4 In contrast to the Roman
laws, this law revolved around the needs of the adopted child, with the
objective of “benefit[ing] minor children in need of parents.”5 The
Massachusetts adoption law set the tone for the rest of the country; today,
adoption laws across the United States center around the child rather than
the adult.6
Because adoption focuses on the needs of the child, social service
workers locate children based on their need for a good home. The law
1.
William C. Duncan, In Whose Best Interests: Sexual Orientation and Adoption
Law, 31 CAP. U. L. REV. 787, 788 (2003) (quoting Richard F. Storrow, The Policy of Family
Privacy: Uncovering the Bias in Favor of Nuclear Families in American Constitutional Law
and Policy Reform, 66 MO. L. REV. 527, 606 (2001)).
2.
See WALTER WADLINGTON & RAYMOND C. O’BRIEN, FAMILY LAW IN PERSPECTIVE
198 (2001) (“Justinian, for example was adopted by his uncle so he could become emperor
of Rome.”).
3.
Id.; see Duncan, supra note 1, at 788-89. This concept is best illustrated by the
New Testament passages on legal adoption, written during the height of the Roman Empire.
These passages compare legal adoption of that day to adoption into the Kingdom of God as
heirs of God and the Lord Jesus Christ. See generally Romans 8, 9; Ephesians 1 “In love, he
predestined us to be adopted as his sons through Jesus Christ, in accordance with his
pleasure and will.” Ephesians 1:4-5 (New International Version).
4.
See 1851 Mass. Acts 324; see also WADLINGTON & O’BRIEN, supra note 2, at 198
n.3 (describing the introduction of adoption to the United States).
5.
See WADLINGTON & O’BRIEN, supra note 2, at 198.
6.
See generally Molly Cooper, Note, Gay and Lesbian Families in the 21st Century:
What Makes A Family?: Addressing the Issue Of Gay And Lesbian Adoption, 42 FAM. CT.
REV. 178, 180 (2004) ( “Unlike in the past, the intent for adoption today is to provide a
service to children.”).
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645
demands that the controlling standard to determine the appropriateness of a
child’s placement is the “best interests of the child.” If all children were
born into great homes, there would be no need for adoption.7
Those seeking parental rights through adoption8 present arguments for
allowing such rights based mainly on the needs, desires or interests of the
parent, rather than what is in the best interest of the child.9 Many same-sex
partner adoptions are done for the sake of the partner, to legalize parental
status or to afford more security to the partner.10 These second parent
adoptions by a same-sex partner are not done primarily for the best
interests of the child. The current status of state statutory and case law
reveals how these cases are argued.
I. THE CURRENT STATUS OF STATE STATUTES AND CASE LAW
Adoption, like all other areas of family law, is regulated by the fifty
individual states, and is purely statutory.11 An overview of adoption law
generally shows that any individual may adopt, and a married couple may
adopt jointly.12 Each state has established laws by statute or by case law.
The following is a summary of statutes, cases, and federal considerations
that are directly on point to this issue. Only a few states’ legislators have
confronted the matter of homosexuals adopting children.13 Generally,
statutory provisions that do exist permit social service workers to consider
7.
See Duncan, supra note 1, at 788.
The availability of a child for adoption is a signal that there is a family breakdown
that must be fixed through the creation of a new family. Otherwise, orphanages
would be a reasonable solution to the problem of children lacking the necessities
of life because of parental abuse or neglect.
Id.
8.
Many of the arguments in favor of homosexual adoption are also utilized in
custody and visitation arrangements. These legal issues, however, are beyond the scope of
this article.
9.
See Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children,
1997 U. ILL. L. REV. 833, 840 (1997).
10.
When same sex partners are allowed to adopt through laws mainly designed for
stepparents, the adoption is used to assert that homosexual relationships are equivalent to
marriage. See id. at 884-91. See generally Baehr v. Miike, No. 91-1394, 1996 WL 694235
(Haw. Cir. Ct. Dec. 3, 1996), aff’d, 950 P.2d 1234 (Haw. 1997). A key issue raised in
defense of same-sex marriage was the state’s interest in providing an optimal environment
for children. This argument is circular rather than logical, and disingenuously uses children
to foster parental interests.
11.
See WADLINGTON & O’BRIEN, supra note 2, at 198-99.
12.
See id. at 203-06.
13.
Alabama, Connecticut, Florida, New Hampshire, Utah, and Vermont are the only
states to broach this area of law statutorily.
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the gender and sexual behavior of the parent.14
A. States Permitting Adoption by Same-Sex Parties
Case law throughout the states reflects the diversity of statutory law.
Generally, the states have statutes requiring the voluntary or judicial
termination of a parent’s rights in order for another person (who is not
married to the parent) to adopt.15 The cases that deal with homosexuals
adopting children have acknowledged that once the petitioner passes
through the statutory hurdle of “who can adopt,” then the “best interests of
the child” analysis is pursued. This best interests analysis, however, can
only be judicially considered once it is established that the petitioning
individual is eligible to adopt. Adoption of children by homosexuals has
generally been accomplished via second-parent or stepparent adoption
provisions.
The Pennsylvania Supreme Court’s recent ruling on the issue of
homosexual adoption provides a fairly instructive perspective of how
courts are somewhat confused.16 The Pennsylvania statute stated that no
adoption shall be granted until the previous parent’s rights have been
terminated “unless the court for cause shown determines otherwise”.17 The
trial court applied the usual rule of statutory analysis regarding who can
adopt before doing a best interest analysis.18 That court concluded that
although the language of the statute (“for cause shown”) leaves the door
open for the court’s discretion, it could not use the child’s best interest for
the “cause shown” because the best interest analysis cannot be considered
14.
See ALA. CODE § 26-10A-5 (1992 & Supp. 2002) (expanding the statutory
language in a 1998 amendment from “any person” may adopt to “any persons,” seemingly
allowing persons of the same sex to adopt together without meeting the statutory marriage
requirement); CONN. GEN. STAT. § 45a–726a (1993 & Supp. 2003) (allowing a child
placement agency to consider sexual orientation in placement decisions and stating that an
agency is not required to place a child with a person who is homosexual); FLA. STAT. ANN. §
63.042(3)(1997 & Supp. 2004) (expressly forbidding adoption by homosexuals; summary
challenges have proceeded from the Florida Code and have been defeated. See e.g., Cox v.
Fla. Dep’t of Health & Rehab. Serv., 656 So. 2d 902 (Fla. 1995)); UTAH CODE ANN. § 7830-1 (2002 & Supp. 2003) (specifying that a cohabiting individual may not adopt a child);
VT. STAT. ANN. tit. 15A, § 1-102 (2002) (codifying the decision in In re Adoption of
B.L.V.B., 628 A.2d 1271 (Vt. 1993), by expressly allowing adoption of a child by a
homosexual partner when that adoption is in the best interest of the child); see also N.H.
REV. STAT. ANN. § 170-B:4 (2001) (removing express language that prohibited adoption of
a child by homosexuals).
15.
See WADLINGTON & O’BRIEN, supra note 2, at 202-03.
16.
In re Adoption of R.B.F., 762 A.2d 739 (Pa. Super. Ct. 2000), vacated by, 803
A.2d 1195 (Pa. 2002).
17.
23 PA. CONS. STAT. ANN. § 2901 (West 2001).
18.
See In re R.B.F., 762 A.2d at 743.
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until after the statutory requisites have been met.19 The Pennsylvania
Supreme Court reversed, holding that it is in the trial court’s discretion to
determine whether cause was shown to establish that the rights should not
be terminated.20 The state’s high court did not discuss whether that cause
could be the child’s best interests. The court remanded the case for a
factual finding for “cause shown.”21 This case defined Pennsylvania’s
current rule that second-parent adoption is generally allowed regardless of
the parent’s sexual preference.
In New York, courts generally permit second-parent adoption. In one
case, the New York high court acknowledged that a statutory analysis must
be done before the best interests of the child can be considered.22 Stating
that it was applying a “strict construction” analysis, the court actually
seemed to be contradicting itself by looking to legislative purpose rather
than the literal language of the statute.23 The court considered two statutes,
one of which states that any individual or married couple together can
adopt.24 The court said that it could not interpret “together” to enforce a
public policy toward marriage, and that, with consent, any two individuals
could meet the statutory requirements and adopt together.25 The court
reasoned that the unique “together” language that applies to married
couples merely declares that one married person cannot adopt without the
other’s permission, or over that married partner’s objection.26 The court’s
alternative rationale was more convincing; it stated that another form of
adoption, open adoption, averts the termination statutes, and therefore the
legislature could not have intended the parental rights termination statutes
to operate in every situation.27 This finding allowed the court to circumvent
the statutory hurdle and begin to look at the best interests of the child.
In Delaware, a different rationale allowed second-parent adoption to
apply to homosexuals wishing to adopt. In a case involving the adoption of
two brothers, the court acknowledged that adoption is purely statutory, and
that while “statutes operating in derogation of the common law must be
strictly construed,” the state’s adoption case law tended toward a liberal,
rather than strict construction approach.28 The Delaware adoption statute
19.
See id. “Prior to a ‘best interests’ of the children analysis, Appellants must meet
the statutory requirements of the Adoption Act.” Id.
20.
See In re R.B.F., 803 A.2d at 1196-97.
21.
See id.
22.
See In re Jacob, 660 N.E.2d 397 (N.Y. 1995).
23.
See id. at 399.
24.
See id. at 400.
25.
See id.
26.
See id.
27.
See id. at 404.
28.
See In re Hart, 806 A.2d 1179, 1183 (Del. Fam. Ct. 2001).
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explicitly states that all questions of interpretation shall be resolved in favor
of the best interests of the child, rather than the best interests of the
parent.29 The court addressed a question of interpretation even though there
was no ambiguity in the statute and therefore no need to interpret the plain
language; moreover, there was no clash between the best interests of the
child and the best interests of the parent. This rationale allowed the court to
waive the fact that stepparents were the exclusive exception to the
termination requirement.30 By looking at “de facto” parents31 from other
cases and statutes, the Delaware court concluded that there could also be a
“de facto” stepparent.32 This analysis allowed the Delaware court to meet
the statutory hurdle, and it went on to the best interest analysis, ultimately
ruling in favor of the homosexual individual adopting.33
Massachusetts has the typical stepparent exception to the termination of
parental rights rule. In In re Tammy, the court pursued the rationale that the
statute did not prohibit the adoption, even though the adoption was not
expressly allowed.34 The court decided that “person” can mean “persons,”
and that the specific provision regarding married people in the adoption
statute exists so that one spouse does not adopt without the permission of
the other or over his or her objection.35 The problem with this rationale,
however, is that if this were the purpose for the married couple provision,
there would be no need to prohibit unmarried people from jointly adopting.
The court’s explanation of the statute seems off-base; if this were truly the
legislature’s objective, it seems that the legislature would require anyone
marrying someone who has already adopted a child to join in the adoption.
29.
See id. at 1185 (referring to DEL. CODE ANN. tit. 13, § 932 (2003) (“Where there
appears to be a conflict between the best interest of the parent(s) and the child, the best
interest of the child shall prevail.”)).
30.
See id. at 1186. The court stated:
Although Delaware law does not define the term “stepparent,” this Court in
Kenneth recognized that under appropriate facts a person who may not have any
legal duty to a child might maintain such a strong parental relationship with the
child similar to that of a natural parent that he/she should be considered a “de
facto parent.”
Id.
31.
A de facto parent is any adult who is not the child’s legal parent, but has resided
with and routinely cared for the child, as a parent, with the legal parent’s consent. “Because
of the status of de facto parent is subordinate to that of legal parent, a person who expects to
be afforded the status of parent should, if possible, adopt the child.” A HANDBOOK OF
FAMILY LAW TERMS 419 (Bryan A. Garner, ed., 2001).
32.
See In re Hart, 806 A.2d at 1186.
33.
See id. at 1188-91.
34.
619 N.E.2d 315 (Mass. 1993).
35.
See id. at 318.
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In re Tammy avoided the termination requirement by declaring that both
parties were jointly adopting,36 rather than one party joining in the
adoption.37 The court found this difference sufficient to hold that the
termination requirement did not apply. The court explained that the purpose
of the termination statute is to protect the rights of adopting parents and if
they want to adopt together, their rights are being protected this way.38 The
court’s rationale was, in the end, adult centered. Professor Wadlington at
the University of Virginia has commented on this sort of litigation seeking
to eradicate distinctions based on sexual orientation:
Special problems can confront a female couple who wish to have a child
through one party’s conceiving though artificial insemination and the
other adopting the child after birth. Under most statutes, adoption
terminates the rights of the original parent(s). A special exception
usually has been enacted to provide that if a stepparent adopts his
spouse’s child the spouse does not lose parental rights. However, in the
case of the unmarried couple of the same sex there is no possibility of
marriage and thus no stepparent. Courts that have decided such cases
sometimes have engaged in a tortuous process of statutory interpretation
to permit such an adoption without loss of parental rights by the birth
mother. . . .39
In summary, New York, Delaware, Pennsylvania, and Massachusetts
have interpreted what appears to be inexplicit legislation in such a way as
to allow homosexual partners to adopt.
On the other hand, Colorado, Connecticut, and Nebraska courts have
ruled that second parent adoption does not allow homosexual partners to
adopt children.
B. States Not Permitting Adoption by Same-Sex Parties
A Colorado appellate court followed the general rule for statutory
interpretation—the plain meaning/strict construction principal of
interpretation;40 the rule states that liberal construction in favor of the best
interest of the child applies only when the statute is ambiguous. The court
concluded that because the statute was unambiguous, the plain language
36.
The birth parent sought to jointly adopt the child with the non-biological parent.
Id. at 315.
37.
See id. at 321. The court reasoned this situation to be a new adoption by both
parties, rather than adding a new party to an existing relationship.
38.
See id.
39.
WADLINGTON & O’BRIEN, supra note 2, at 206 (using similar premises as those
used in In re Tammy, 619 N.E.2d 315 (Mass. 1993) and In re B.L.V.B. & E.L.V.B, 628 A.2d
1271 (Vt. 1993)).
40.
See In re TKJ & KAK, 931 P.2d. 488, 492 (Colo. Ct. App. 1996).
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rendered moot the best interest question.41 In response to a constitutional
argument, the court also noted that there is no liberty interest to protect the
parent-child relationship in these situations because the potential adoptive
parent has not yet adopted; therefore, that party does not yet have a
protected liberty interest.42
In a Connecticut case, a strict construction of second parent adoption
statutes prohibited the adoption of a child by a homosexual.43 Connecticut
has a very complicated statutory process for adoption, which yielded an
equally complicated and lengthy discussion in the opinion,44 but the court
adopted a plain meaning reading of the stepparent exception to termination
of parental rights and concluded that only heterosexual stepparents can
adopt.45 Since this 1999 ruling, Connecticut has responded by passing a
statute allowing another person who shares responsibility for the child to
adopt as long as the legal parent gives permission.46
In a Nebraska adoption case, a homosexual petitioner asserted that
consent to the second parent adoption by the other birth parent is the
equivalent of termination of the parent’s rights.47 The court rejected this
argument based on strict scrutiny, and the homosexual partner was not able
to adopt under a second parent adoption.48
C. Summary of Adoption Law
Some additional general observations in the context of case law, and a
summary, can help us understand why these cases have such varying
analyses. First, courts that have allowed second parent adoption have done
so by either allowing the best interest analysis to come into play before the
statutory hurdle is met or they have compromised that hurdle in some way.
41.
42.
43.
44.
45.
See id.
See id. at 494-95.
See In re Baby Z, 724 A.2d 1035, 1048-50 (Conn. 1999).
See id. at 1047-61.
See id. at 1051. The court’s holding reads: “We conclude, therefore, that the
legislature intended that the exception set forth. . . for stepparent adoption agreements be the
only exception to the jurisdictional requirement. . . that a statutory parent, by written
agreement, give a child in adoption.” Id. The court had given its rationale for strict over
liberal construction in statutory analysis and the best interests analysis when it stated:
“[A]lthough [statutes] provide[ ] that certain adoption statutes . . . ‘be liberally construed in
the best interest of any child for whom a petition has been filed under said sections,’ the best
interest of a child cannot transcend statutorily defined jurisdictional boundaries.” Id. at
1048. This court expressed a concern for the judicial crossing of legislatively set
jurisdictional boundaries, even under the guise of the best interest of children.
46.
See CONN GEN. STAT. §§ 45a-726a (2003).
47.
See In re Luke, 640 N.W.2d 374, 380 (Neb. 2002).
48.
See id. at 382-83.
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Second, regarding joint adoption by same-sex couples or second parent
adoption, statutes generally require marriage, but courts circumvent this by
interpreting “person” in the statute as “persons.” They also interpret
stepparent adoption statutes loosely to include someone who lives with the
parent. Third, some courts say same-sex unions are the functional
equivalent of marriage; others do not. Fourth, the effect of sexual
orientation on adoption is varied; different courts give varying weight to
sexual orientation in their determinations. Fifth, most adoption decisions
are not appealed for further judicial review. Finally, most adoption
agencies allow same-sex couple adoption regardless of state laws. These
adoptions never enter the judicial system and are therefore absent from
judicial scrutiny. In light of these observations, it is understandable how the
case law has become a bit convoluted.
D. Federal Considerations
Federal constitutional considerations may play into this legal issue.
Although state law regulates family law in general and adoption law in
particular, there are a couple of federal concerns that must also be applied
to the homosexual adoption debate. The strongest constitutional argument
is the protection of fundamental rights; however, no fundamental right to
adopt exists. Adoption is a privilege.49
The equal protection requirement is one of the most influential and
important federal constitutional considerations regarding rights of
homosexuals. Based on the Fourteenth Amendment requirement for equal
protection, those “similarly situated” must be treated the same.50 The equal
protection similarly situated requirement forces proponents of homosexual
parenting to downplay the differences. This treatment should be avoided
because different does not equal harmful. The differences might even be
positive. If gender norms are oppressive, then kids in gay families might be
better off; some advocates have made these excellent arguments.51 The
whole purpose of the equal protection requirement is indeed to avoid
striking non-arbitrary distinctions. What this requirement does foster,
however, are distinctions that are actually there for a reason.
Furthermore, it bears repeating that adoption is child-focused, not adultfocused; rather than making an equal protection argument, proponents
should be going to the legislatures rather than the courts to show why their
differences are not only acceptable, but in the best interests of the child.
49.
50.
See Wardle, supra note 9; Duncan, supra note 1.
See U.S. CONST. amend. XIV (“No state shall deny any person within its
jurisdiction the equal protection of the laws.”).
51.
See e.g., Carlos Ball, Lesbian and Gay Families: Gender Nonconformity and the
Implications of Difference, 31 CAPITAL U. L. REV. 691, 705-20 (2003).
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From this analysis of the statutes, it seems apparent that this is not
happening.
A further analysis of the equal protection requirement as applied to
adoption law uses sex-based discrimination similar to that in Baehr v.
Miike.52 Some argue that because adoption does not involve reproduction,
distinctions based on the differences between men and women are
unconstitutional. This argument is irrelevant. Men and women are different
whether they reproduce or not.53 Every state allows adoption by singles,54
which leads some scholars to argue that such allowance deprives the child
of dual-gender parenting. An argument can then be made that to deny
adoption to homosexuals is no more a deprivation of dual-gender parenting
and thus the distinction is unfair. In the case of a single heterosexual person
adopting, however, there is not the permanent deprivation of dual gender
parenting that exists when a homosexual adopts; to the contrary, the single
heterosexual may marry, affording a mother and a father for the child.
This legal analysis leads to the important discussion of the arguments in
favor of and the arguments against homosexuals adopting children.
II. TEN ARGUMENTS: PROS AND CONS OF HOMOSEXUALS ADOPTING
CHILDREN
1. Gender-is-a-Social-Construct
The first argument is the Gender-is-a-Social-Construct argument. Many
scholars theorize that gender is merely a social construct;55 that there is no
difference between mothering and fathering and that someone of either sex
can do either.56 Love is what kids need.
52.
No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), aff’d, 950 P.2d 1234
(Haw. 1997).
53.
Furthermore, gender (and sex) has never received strict scrutiny under the federal
constitution.
54.
WADLINGTON & O’BRIEN, supra note 2, at 203-04.
55.
See Ball, supra note 51, at 710-18. A recent Florida case is instructive on this
point. Kantaras v. Kantaras, No. 98-5375CA (Fla. Cir. Ct. Feb. 23, 2003), available at
http://courttv-web1.courttv.com/archive/trials/kantaras/docs/opinion.pdf (last visited Jan. 8,
2004). A court in that state ruled that if a person desires to be a man even though she was
born a woman then she can legally marry a woman without violating Florida’s Defense of
Marriage Act which limits marriage to only one man and one woman because gender is
primarily a state of mind. Kantaras is currently pending before the Second District Court of
Appeals in Lakeland, Florida. See also News Release, Liberty Counsel, Liberty Counsel
Takes on Transgender Case Where Trial Judge Found That Gender was Primarily a State of
Mind (July 22, 2003), available at http://www.lc.org/pressrelease/2003/nr072203.htm.
56.
See Ball, supra note 51, at 711-15 (citing Wardle, supra note 9 and taking issue
with Wardle’s arguments).
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653
Conversely, this argument may be a case of legal theory replacing
reality. Gender is a revealed biological fact. No matter how much we
surgically manipulate body parts in transgender alterations, sexual
dimorphism does not begin and end in reproductive body parts, but is
evident in brain substance.57 The most loving man cannot teach a girl how
to be a woman. The most loving woman cannot teach a boy how to be a
man. A gay man cannot teach his son how to love and care for a woman. A
lesbian cannot teach her daughter how to love a man or know what to look
for in a good husband. The love of two gay dads may not be enough to
guide a daughter through her first menstrual cycle. Little boys and little
girls need the loving influence of both a male and a female parent.
The logical result of the argument that gender is merely a social
construct is that parenthood itself will come to be defined as only an act
performed by two or more androgynous beings. The reality is that there are
genuine, necessary differences that exist between the sexes,58 and these
differences not only matter but are also significant to the best interests of a
child.
2. Parental Autonomy
The second argument, in favor of homosexual adoption, is based on
parental autonomy. This argument emphasizes that homosexual adoption
cases are based on parental autonomy.59 The state should not interfere with
57.
See Greg Johnson, The Biological Basis for Gender-Specific Behavior, in
RECOVERING BIBLICAL MANHOOD AND WOMANHOOD: A RESPONSE TO EVANGELICAL
FEMINISM 280-89 (John Piper & Wayne Grudem eds. 1997) (discussing sex differences in
the peripheral nervous system, cerebral organization, non-nervous system physiology, the
limbic system and human behavior). There are numerous incidents of transgender
individuals seeking judicial name changes. A recent Georgia case is illustrative. See News
Release, Lambda Legal, Lambda Legal Wins Case Seeking Name Change for
Transgendered Woman in Georgia (Sept. 11, 2003), available at http://www.lambdalegal.
org/cgi-bin/iowa/documents/record?record=1317. A man to woman transgender was legally
allowed a name change to match her sex. The court initially didn’t allow the name change,
stating that the petitioner first needed to undergo the complete sex reassignment surgery.
The court, however, after petitioner persistence, ruled the name change was allowed even
though the sex change had not been completed. See id. See generally Kantaras, No. 985375CA. Some theorize that if enough cases like these are decided in this way, this line of
judicial decisions creates a legal basis for the idea that gender is just a state of mind. See
Nita Weier, Marriage Debate Fierce, WISC. STATE J., Oct. 24, 2003, at 4A, 2003 WL
59185503 (reporting that “[a] judge in Florida determined that gender is just a state of
mind”).
58.
See generally Johnson, supra note 57. This does not mean that one sex is better
than the other, rather the sexes are simply undeniably different.
59.
See Ball, supra note 51, at 720-24. Ball compares the option of allowing a
homosexual partner to adopt his or her partner’s child to the choice to home-school the
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the parents in parental consent adoption proceedings (or second-parent
adoption); this argument is adult-focused.
There is no parental autonomy if the parent has not adopted. If the
adoptive-parent is a partner of a person who has a child by artificial
insemination, a previous relationship, or adoption, that adoptive-parent is
actually not a parent and has no parental autonomy. The biological parent’s
parental autonomy right to allow someone else to adopt his or her child has
a different problem. Adoption requires a legal process approved by the
state, not just by the natural parent;60 since adoption is a legal process
approved by the state, the parent’s partner has no parental rights until he or
she is so authorized.
3. No Risks
The third argument is the No Risks argument; it is based on the premise
that homosexual parents can protect and raise children as easily as
heterosexual parents. Moreover, these parents do not expose children to
any more risks than heterosexual parents.
The goal of parenting is proper rearing and protection of a child as he or
she is growing up. A myriad of studies have queried what circumstances
cause children to thrive. These studies show that children do best in a home
headed by dual-gender parents married to each other.61 Again, when
child. Commentators argue that adverse effects exist in both situations; but because each
option falls within parental autonomy, the state cannot prohibit it. The argument,
nevertheless, ignores that home-schooling, unlike adoption, does not take a legal process to
accomplish. See id. at 722-24.
60.
See generally WADLINGTON & O’BRIEN, supra note 2, at 201-04.
61.
See U.S. DEPT. OF JUSTICE, CRIMINAL VICTIMIZATION IN THE UNITED STATES, 1992
31 (Mar. 1994); see generally ROBERT T. MICHAEL ET AL., SEX IN AMERICA: A DEFINITIVE
SURVEY (Little Brown Co., 1994); GLENN T. STANTON, WHY MARRIAGE MATTERS: REASONS
TO BELIEVE IN MARRIAGE IN POSTMODERN SOCIETY (1997); LINDA WAITE & MAGGIE
GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER
AND BETTER OFF FINANCIALLY (2000) [hereinafter WAITE & GALLAGHER]; James Goodwin
et al., The Effect of Marital Status on Stage, Treatment, and Survival of Cancer Patients,
258 J. AMA 3125-30 (1987); I.M. Joung et al., Differences in Self-Reported Morbidity by
Marital Status and by Living Arrangement, 23 INT’L J. EPIDEMIOLOGY 91-97 (1994);
Catherine Malkin & Michael Lamb, Child Maltreatment: A Test of the Sociobiological
Theory, 25 J. OF COMP. FAM. STUD. 121-33 (1994); Benjamin Malzberg, Marital Status in
Relation to the Prevalence of Mental Disease, 10 PSYCHIATRIC Q. 245-61 (1936); Randy
Page & Galen Cole, Demographic Predictors of Self-Reported Loneliness in Adults, 68
PSYCHOL. REP. 939-45 (1991); Steven Stack & J. Ross Eshleman, Marital Status and
Happiness: A 17 Nation Study, 60 J. MARRIAGE & FAM. 527-36 (1998); Jan Stets,
Cohabiting and Marital Aggression: The Role of Social Isolation, 53 J. MARRIAGE & FAM.
669-80 (1991); Lois Verbrugge & Donald Balaban, Patterns of Change, Disability and
Well-Being, 27 MEDICAL CARE S128-S147 (1989); Linda Waite, Does Marriage Matter? 32
2004] MORAL REALISM AND ADOPTION BY HOMOSEXUALS
655
focusing on the child, a court should use the “best interests of the child”
standards: Using this research, the bottom line pragmatic quickly concludes
that to achieve this standard, a child needs to be raised by a mother and a
father married to each other. The next logical step is to conclude that, by
nature of this bottom line, same gender parents preclude the very best
interests of a child. Furthermore, the gay community itself recognizes that
the average homosexual lifestyle is more feral and untamed than the
average heterosexual lifestyle.62 This gap widens when the same
comparison is made with heterosexuals who are married to each other.
Homosexual behavior, in general, implies a greater behavioral and lifestyle
risk to children. This consideration quickly becomes a discussion of best
versus possibly acceptable, and is focused on the adult rather than on the
child.
4. The Fairness Argument
The most contentious argument is The Fairness Argument. Under this
argument, the reasoning argues that it is only fair to allow homosexuals to
DEMOGRAPHY 483-507 (1995) [hereinafter Waite, Does Marriage Matter?]; David Williams
et al., Marital Status and Psychiatric Disorders Among Blacks and Whites, 33 J. HEALTH &
SOC. BEHAV. 140-57 (1992); Leslie Carbone, For Better or For Worse? As a Trial Run for
Marriage, Cohabitation Flunks the Test, PHILA. INQ., June 5, 1999, § A, at 9 (stating that
children residing in homes with cohabiting couples have more behavior problems).
In fact, the research is overwhelming that a child is more likely to be abused by a
mother’s partner to whom she is not married. See RONALD ANGEL & JACQUELINE ANGEL,
PAINFUL INHERITANCE: HEALTH AND THE NEW GENERATION OF FATHERLESS FAMILIES 139,
148 (Univ. of Wis. Press 1993); DAVID T. ELLWOOD, POOR SUPPORT: POVERTY IN THE
AMERICAN FAMILY 46 (Basic Books 1988); IRWIN GARFINKEL & SARA MCLANAHAN, SINGLE
MOTHERS AND THEIR CHILDREN: A NEW AMERICAN DILEMMA 30-31 (Urban Inst. Press
1986); MICHAEL GOTTFREDSON & TRAVIS HIRSCHI, A GENERAL THEORY OF CRIME 103
(Stanford Univ. Press 1990); SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A
SINGLE PARENT: WHAT HURTS, WHAT HELPS (Harvard Univ. Press 1994); DAVID POPENOE,
LIFE WITHOUT FATHER (Martin Kessler Books, 1996); JUDITH S. WALLERSTEIN & SANDRA
BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN, A DECADE AFTER DIVORCE
(Ticknor & Fields 1989); JUDITH WALLERSTEIN ET AL., THE UNEXPECTED LEGACY OF
DIVORCE: A 25 YEAR LANDMARK STUDY (Hyperion 2000) [hereinafter WALLERSTEIN, THE
UNEXPECTED LEGACY OF DIVORCE]; Ronald J. Angel & Jacqueline Wombey, Single
Motherhood and Children’s Health, 29 J. HEALTH & SOC. BEHAV. 38, 38-52 (1988); Richard
Koestner et al., The Family Origins of Emphatic Concern: A Twenty-Six Year Longitudinal
Study, 58 J. PERSONALITY & SOC. PSYCHOL. 709, 709-17 (1990); L. Remez, Children Who
Don’t Live With Both Parents Face Behavioral Problems, FAM. PLAN. PERSP. (Jan/Feb
1992); Nicholas Zill et al., Long-Term Effects of Parental Divorce on Parent-Child
Relationships, Adjustment, and Achievement in Young Adulthood, 7 J. FAM. PSYCHOL. 91,
91-103 (1993).
62.
See MARSHALL KIRK & HUNTER MADSEN, AFTER THE BALL: HOW AMERICA WILL
CONQUER ITS FEAR AND HATRED OF GAYS IN THE ‘90S 280-347 (1990).
656
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adopt and that it is unfair that in some states unmarried couples cannot
adopt and married ones can.63 Marriage should not be that important;
fairness ought to dictate. This argument is clearly adult-focused.
The “best interests” of a child, however, is not about fairness.64 It is
about what is best for a child. The fairness argument does not emphasize
what is best for a child; rather, it focuses on destroying the link between
marriage and child rearing. Research shows65 children do better with a
mother and a father, particularly when that mother and father are married to
each other. 66 Marriage of a mother and father are important for the best
63.
See generally Ball, supra note 51, at 726-30 (discussing various state statutes and
their adoption law requirements).
64.
The issue of fairness is a hot button that is getting pushed often to make points in
favor of homosexual rights in many areas. The current events in Canada provide one
example; because Canadian polls show that Canadians are divided almost 50-50 on
homosexual couples and the right to marry, “[T]he government is also looking at glitzy ads
that would put the issue of human rights for same-sex couples in the living rooms of the
nation and appeal to people’s ‘sense of fairness and fair play.’” Ben Thompson, Canada
Sells Gay Marriage (Sept. 3, 2003), at http://www.365gay.com/NewsContent/090303
cauchonMarriage.htm.
65.
See supra Part II.3. Before enacting 42 U.S.C. § 601, Congress made several
findings to support the new law. These findings stated, in part that:
(H) The absence of a father in the life of a child has a negative effect on school
performance and peer adjustment.
(I) Children of teenage single parents have lower cognitive scores, lower
educational aspirations, and a greater likelihood of becoming teenage parents
themselves.
(J) Children of single-parent homes are 3 times more likely to fail and repeat a
year in grade school than are children from intact 2-parent families.
(K) Children from single-parent homes are almost 4 times more likely to be
expelled or suspended from school.
Congressional Findings 9(H-K), 42 U.S.C. § 601 (2000). Research over the last 100 years
consistently shows us that marriage provides a treasure chest of good things for adults,
children and society. See generally sources cited supra note 61 (noting, specifically, the
following works by the authors contained therein: Carbone; Stanton; Waite, Does Marriage
Matter?; WAITE & GALLAGHER).
66.
In fact, “the evidence favoring marriage is so overwhelming that the federal
government has begun to encourage the inclusion of a marriage training component in all
state welfare plans.” Glenn T. Stanton, Is Marriage in Jeopardy, in CITIZEN LINK, available
at http://www.family.org/cforum/fosi/marriage/FAQs/a0026916.cfm; see Robin Toner &
Robert Pear, Bush’s Plan on Welfare Law, Increases Work Requirement, N.Y. TIMES, Feb.
26, 2002, at § A, 2002 WL 15674366. See generally Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, 42 U.S.C. § 601 (2001), Pub. L. No. 104-193,
§ 401(a), 110 Stat. 2105, 2113 (1996).
2004] MORAL REALISM AND ADOPTION BY HOMOSEXUALS
657
interest of the child.67
5. Any Parent is Better than an Abusive Parent
The fifth argument is the Any-parent-is-better-than-an-abusive-parent
argument. This line of reasoning claims that it is better for a child to grow
up with any parent rather than no parent, or even better, two loving same
sex parents. This adult-focused argument describes abusive homes and
foster-care.
Research also reveals that the lowest rates of child abuse occur when
children live with both biological parents who are married to each other,
compared with higher rates for children who live with at least one nonbiological parent or caregiver.68 Same-sex parenting situations make it
impossible for a child to live with both biological parents. A child of
homosexual parents is intentionally deprived of living with both biological
parents, and abuse rates are higher for children who do not live with both
biological parents, therefore homosexual parenting by nature decreases the
child’s possibility of avoiding abuse.
Furthermore, proponents of homosexual adoption are not asking that
homosexuals adopt only the children in the most difficult situations. It is
intellectually dishonest to preface this argument favoring adoptions by
homosexuals with the claim that a homosexual home is better than an
abusive home unless homosexuals only want to adopt abused children; that
is not the case. Homosexuals who want to parent are asking for the same
thing all parents desire: healthy and happy children they can call their own.
Many homosexuals will indeed take and care for children of abused
circumstances, but married heterosexual couples wait in line for these
children as well. The idea that homosexual parents will serve a higher
social good is praiseworthy if homosexuals only take children in the most
difficult situations. That has not been the request. The general issue and
request is for homosexuals to adopt, not that homosexuals only wish to
adopt abused children. Rules based on exceptions fall prey to false logic.
67.
Congressional Findings 1-3 of 42 U.S.C. § 601 (2000). They state:
(1) Marriage is the foundation of a successful society.
(2) Marriage is an essential institution of a successful society which promotes the
interests of children.
(3) Promotion of responsible fatherhood and motherhood is integral to successful
child rearing and the well-being of children.
Id.
68.
See generally POPENOE, supra note 61 (noting overwhelming research that a child
is more likely to be abused by mother’s partner to whom she is not married); see also
Malkin & Lamb, supra note 61, at 121-33. See generally supra note 61 and accompanying
text.
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6. Children of Gay Parents Do Just as Well
The sixth argument is the Children of Gay Parents Do Just As Well
argument. This reasoning claims that we do not know if there are any
negative effects of homosexual parenting on children. In fact, social
science studies prove otherwise.69
Conversely, however, some scholars have noted that social science
studies on same-sex parenting are so poorly done that nothing can really be
concluded from them.70 In fact, studies performed by proponents of
homosexual adoption are generally unreliable in quantity, have small
sample sizes, and thus are methodologically and analytically flawed.71
Samples of convenience are often used, as subjects are self-selected, and
these subjects usually have an interest in the outcome. Most of these studies
involve children of homosexual women and seldom include data from
homosexual males. Furthermore, there has yet to be a study that has used
married heterosexual couples as its control group. Because the numbers are
flawed, the analysis of those numbers is also necessarily flawed.72 The best
interests of the child demand a better empirical study.
7. Family Structure Does Not Matter
The seventh argument is the Family Structure Does Not Matter
argument. This line of reasoning concludes that the well-being of the child
is more important than family structure. In other words, the family structure
cannot really matter that much. What matters is what is best for the child.
Although the best interest of a child is often linked to family structure,73
the state cannot take children out of any home just because officials think
there is a better home for them somewhere. This fact demonstrates that
“child well-being cannot totally displace family structure in the
69.
The American Psychological Association surveyed the current research in 1995
and concluded that “the evidence to date suggests that home environments provided by gay
and lesbian parents are as likely as those provided by heterosexual parents to support and
enable children’s psychological growth.” AMERICAN PSYCHOLOGICAL ASSOCIATION,
LESBIAN AND GAY PARENTING: A RESOURCE FOR PSYCHOLOGISTS 8 (1995), available at
http://www.apa.org/pi/parent.html (last visited Mar. 11, 2004).
70.
See Duncan, supra note 1, at 799.
71.
See id.
72.
See Wardle, supra note 9, at 833. Because homosexual behavior is associated with
many risks for kids (suicide, prostitution, HIV, etc.), Wardle argues that this is something
that at least needs to be noted. There is a serious absence of longitudinal studies in the area
of homosexual parenting. Professor Wardle suggests that the effect of homosexual parenting
on children needs to be studied honestly, accurately, and with recognized methods. See id. at
840.
73.
See supra note 65 and accompanying text (discussing the significance of children
being raised by parents who are married to each other).
2004] MORAL REALISM AND ADOPTION BY HOMOSEXUALS
659
determination of what is in a child’s best interest.”74 A parent’s autonomy
must control regardless of the family structure, unless that parent is found
to be unfit. This is an adult-focused argument.
8. Single Persons Can Adopt
The eighth argument is the Singles Argument. This argument states that
if single heterosexuals can adopt, single homosexuals ought to be able to
adopt as well.
Single adoption is a good thing because it provides a home for a child.
Importantly, single adoption does not take away from the policy of putting
children in nuclear-like families because the single parent might marry. In
fact, this possibility is the whole point behind stepparent adoption laws.75
Homosexual adoption necessarily deprives a child of the possibility of
having the best, a mother and a father who are married to each other. This
is possible with a single heterosexual parent, but it is not possible with a
single homosexual parent.
9. Anyone Ought to be Able to Adopt
The ninth argument is the Anyone Ought to be Able to Adopt argument.
This is a fair line of reasoning, and claims that anyone who can provide a
home for a child ought to be able to adopt.
Again, it fails because adoption rules should revolve around children not
parents: “Adoption policy must establish default rules that maximize the
likelihood that the child’s interest will be met regardless of parental
intent.”76 This argument is also clearly adult-focused. The child-focused
argument ought to be any child who needs a family ought to be placed in
the best family possible for him or her. By contrast, the argument that
anyone ought to be able to adopt reveals the adult focus of the homosexual
adoption movement. It also reveals the detriment of a clear and intentional
deprivation of a parent to a child.
10. Argument Against Exclusion
The tenth argument is the Argument Against Exclusion. This rationale
states that if a person wants to care for a child, he or she should be allowed
to do so. Someone should not be excluded from adopting just because that
individual is a homosexual.
This argument, again, is adult-focused rather than child-focused, and
disregards necessary parenting qualities. Parents are held to a fitness
74.
75.
76.
Duncan, supra note 1, at 799.
See id.
Id. at 801.
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standard.77 Homosexuality by itself is not a fitness indicator. Parental
behavior, however, is the crux of the fitness standard and is almost always
a factor to be considered in that standard. If our society moves to sanction
same-sex adoption, why not allow any group to adopt a child, if they are
truly concerned about the child? This argument is further complicated by
the fact that the same-sex marriage debate is quickly moving toward
polyamory, vesting this argument into a more of a serious concern. 78
III. MORAL REALISM AND PUTTING CHILDREN FIRST
Adoption’s legal and social objective is to do what is best for a child.
Moral realism requires the consideration of not only the arguments in favor
of and opposing homosexuals adopting children, but also requires asking if
anything can be learned from what has already been done.
Legal rules have been made without proper consideration of their future
implications; one example is no-fault divorce.79 Judith Wallerstein has
recently completed a landmark study on divorce and concluded that divorce
has no positive effects on children.80 Divorce, by nature an adult-focused
issue, has many major negative ramifications for children.
Rulings in the Netherlands can also be instructive. Homosexual unions
have been legal in that country for several years.81 A recent study
conducted in the Netherlands found that the average homosexual
77.
78.
See WADLINGTON & O’BRIEN, supra note 2, at 203.
See Michael Kinsely, Abolish Marriage: Let’s Really Get the Government Out of
Our Bedrooms, WASH. POST, July 3, 2003, at A23. The “[s]olution is to end marriage . . . or
rather, the solution is to end the institution of government monopoly on marriage. . . . And,
yes, if three people want to get married, or one person wants to marry herself, and someone
else wants to conduct the ceremony and declare them married, let ‘em.” Id.; see also Stanley
Kurtz, Beyond Gay Marriage, WKLY. STANDARD, at http://www.weeklystandard. com/
Content/Public/Articles/000/000/002/938xpsxy.asp (Aug. 4, 2003) (discussing the potential
for polyamory).
The Platform of the 1972 National Coalition of Gay Organizations included a demand for
the “‘repeal of all legislative provisions that restrict the sex or number of persons entering
into a marriage unit; and the extension of legal benefits to all persons who cohabit
regardless of sex or numbers. . . .’ Group marriage could comprise any combination of
genders.” Judith Levine, Stop the Wedding!, VILLAGE VOICE, July 29, 2003, at 40.
79.
In 1969, Ronald Reagan signed into law the first no-fault divorce statute. Family
Law Act, ch. 1608, §§ 1-32, 1969 Cal. Stat. 3312.
80.
See generally WALLERSTEIN, THE UNEXPECTED LEGACY OF DIVORCE, supra note
61.
81.
See Act of 21 December 2000 amending Book 1 of the Civil Code, Act on the
Opening Up of Marriage, Staatsblad 2001, nr. 9, available at http://www.kampania.org/
old/ustowy/text_of_dutch_law_on_the_opening_up_of_marriage_for_same.doc (last visited
Jan. 16, 2004).
2004] MORAL REALISM AND ADOPTION BY HOMOSEXUALS
661
relationship lasts only one and one-half years.82 The same study found that
gay men have an average of eight sexual partners per year outside of their
primary relationship.83 By contrast, that study reported sixty-seven percent
of first marriages in the United States last ten years or more, and more than
seventy-five percent of (heterosexual) married couples report being faithful
to their vows.84 Furthermore, four independent Scandinavian nations have
legalized the due process equivalent of homosexual marriage but still have
restrictive laws for child rearing.85 These nations have established
permissive privacy rules for consenting adults, but remain paternalistic
with regard to child rearing.
This evidence leads to concerns regarding a paternalistic state as parent.
This approach could reveal the true nature of the paternalistic state. In this
kind of environment, children are wards of the state. State protection may
work in the short run to safeguard children, but, in the long run, it reflects a
radical individualism that is very dangerous, and indeed can lead to
anarchy. Parents’ rights is the balance for state interference, which also
explains why parents married to each other are preferred, even by the state,
which in turn serves to minimize state interference in the family.
It is also commonly known that there has never been a culture or society
that made homosexual parenting part of its family model. Homosexual
parenting is not well received in Europe,86 an area of the world whose
culture is generally more progressive than the United States. EOS Gallup
Europe conducted an extensive study on this in January 2003.87 The study
concluded that a majority of Europeans in favor of homosexual marriages
remained reluctant toward child adoption by homosexual couples.88
Although fifty-seven percent favored marriage for homosexual couples,
only twenty-three percent agreed on government authorization of
homosexual marriages, and even fewer, only seventeen percent, favored
child adoption by homosexual couples.89
The actual objective in the area of homosexuals and homosexual couples
adopting children may be more driven by an activist desire to dramatically
82.
See Maria Xiridou, et al., The Contribution of Steady and Casual Partnerships to
the Incidence of HIV Infection Among Homosexual Men in Amsterdam, 17 AIDS 1029-38
(2003).
83.
See id.
84.
See id.
85.
See Wardle, supra note 9, at 892. The Scandinavian countries include the
Netherlands, Belgium, Norway and Sweden.
86.
See id.; see also infra notes 90-93.
87.
Press Release, EOS Gallup Europe, Homosexual Marriage and Child Adoption
(Jan. 2003), available at http://www.eosgallupeurope.com/homo/pr_en.pdf.
88.
See id.
89.
See id.
662
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change family law itself. Homosexuals may seek parenting rights through
adoption as a sort of back door approach to marriage rights, an area of great
concern to homosexual activists. Andrew Sullivan, one time editor of the
New Republic and an activist noted for honesty and logic, has stated that
marriage for homosexual men must be sexually open,90 lending to the
reflection that sanctioning homosexual adoption laws and same-sex
relationship legalization fosters beginning steps toward polyamorous
families.91
The common good requires that certain facts also be considered. For
example, the death rate for homosexual men is dramatically different from
the general public. The life expectancy for homosexual men is twenty to
thirty years less than that for heterosexual males.92 Premature death of a
parent is never good for kids. Urging our government to sanction a practice
destructive to the health of the individual and society is not wise for the
common good. Furthermore, separation from a father is a leading cause of
declining child well-being in our society.93 Because more women adopt
than men do, there are many cases of lesbian parenting that are positive and
do not support this concern. The loss of dual-gender parenting, however,
remains a fact that carries serious consequences for the child.94
Homosexual parenting clearly and intentionally deprives a child of a father
and a mother.
Finally, homosexual sex acts are not reproductive in nature, and can
never foster a future civilization. The common good requires that children
be put first, to foster a future civilization.
IV. THE SOLUTION: PUTTING CHILDREN AND THE FUTURE CIVILIZATION
FIRST
The link between marriage and childrearing is undeniable.95 This
90.
See ANDREW SULLIVAN, VIRTUALLY NORMAL 202-03 (2003). The author states:
[Heterosexuals will have to develop a greater] understanding of the need for
extramarital outlets between two men than between a man and a woman . . . . The
truth is, homosexuals are not entirely normal; and to flatten their varied and
complicated lives into a single, moralistic model is to miss what is essential and
exhilarating about their otherness.
Id.
91.
This is also part of the 1972 Gay Rights Platform. See Levine, supra note 78; see
also Kurtz, supra note 78.
92.
See Levine, supra note 78; see also Kurtz, supra note 78.
93.
See generally POPENOE, supra note 61.
94.
See supra notes 58-60 and accompanying text.
95.
See generally Carbone, supra note 61; POPENOE, supra note 61; STANTON, supra
note 61; WAITE & GALLAGHER, supra note 61; McLanahan & Sandefur, supra note 61.
2004] MORAL REALISM AND ADOPTION BY HOMOSEXUALS
663
connection was evidenced in a recent Arizona case where the court rejected
a homosexual couple’s attempt to gain lawful status as a married couple by
holding that there is a reasonable link between marriage, procreation, and
childrearing.96 The court found that “[t]he history of the law’s treatment of
marriage as an institution involving one man and one woman, together with
recent, explicit reaffirmation of that view, lead invariably to the conclusion
that the right to enter a same-sex marriage is not a fundamental liberty
interest protected by due process.”97
The link between what we do now and our future civilization is also
apparent in the work of psychologist Judith Wallerstein. Her work on the
effects of divorce discovered and explained the severe detrimental
implications for children of no-fault divorce.98 The future of our society is
at stake. Other forms of social experimentation affecting children have
been done on child sexual development. The National Institute of Child
Health and Human Development recently funded a four-day conference in
July on sexual arousal at the Kinsey Institute.99 Kinsey Institute officials
have reported that previous research on children’s sexual behavior was
based on research on sex offenders.100 Experimenting with our children
does not evidence any intent to put their best interests first. Children
deserve a duty of protection.
The best interests of a child demand moral realism. Honest, principled
decisions about what is best for a child require the utmost pragmatism and
common sense. Moral realism demands some solutions to the dilemma of
who ought to be legally sanctioned to adopt children. The need for every
child to have the benefit of having a mother and a father, and the preference
for that child’s parents to be married to each other mandates that there exist
a legal standard to live by in the area of homosexuals adopting children.
One scholar has suggested that states establish a legal presumption in the
area of homosexual adoption. Professor Lynn Wardle proposes that courts
should adopt a rebuttable presumption using a preponderance standard that
homosexual relations are not in the best interests of children.101 He argues
that courts are currently locked in a struggle with the lack of neutrality.
This argument may be an underlying reason for the delay in the
Massachusetts Supreme Judicial Court’s decision in Goodridge v.
96.
See Standhardt v. Superior Court of Arizona, 77 P.3d 451, 461 (Ariz. Ct. App.
2003).
97.
Id. at 460.
98.
See WALLERSTEIN, THE UNEXPECTED LEGACY OF DIVORCE, supra note 61.
99.
See Robert Stacy McCain, GOP Lawmaker Balks at Kinsey Sex Study Funding,
THE WASH. TIMES, Sept. 17, 2003, at A3, available at http://www.washingtontimes.
com/national/20030908-121538-9743r.htm.
100.
See id.
101.
See Wardle, supra note 9, at 894.
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Department of Public Health.102 The literature and media campaign on this
issue is drastically imbalanced.103 Combining the effects of a politically
correct culture on the judiciary, the general public hesitancy toward
adoption by homosexual couples, and the fact that advocates of
homosexual adoption are not seeking to deny anyone their rights, but rather
create new rights, the opposition is not very strong. No group has a strong
vested interest in presenting the opposing view, so opposition is seldom
heard of, or even considered. Therefore, the debate surrounding this issue is
very one-sided.
Establishing a presumption would foster judicial economy. Generally the
proponent of the adoption has the burden of proof and the burden of the
expense. The homosexual parent would appropriately, therefore, have this
burden. This argument is buttressed by the fact that so little is known about
the effects of homosexual parenting on children. The judge can make the
presumption rebuttable, and review the studies for herself.104
Most importantly, making this a rebuttable presumption against all
extramarital behaviors, not just homosexual behavior, could satisfy equal
protection claims. If intellectual honesty is to be required about this issue of
putting children first, extramarital heterosexual behavior needs to be
considered as a fair game rebuttable presumption as well. Again, this
matter of adoption is about children; it is not about the rights, needs, or
desires of adults. Establishing a rebuttable presumption against all
extramarital behaviors will indicate what kind of society we provide for
children. How this issue is decided will determine what kind of society we
live in, and what we will have in the future.
Finally, the communitarian aspects of the problem of homosexual
adoption are critical. Adoption affects not only the child and the adults
involved in the adoption; it affects everyone around that family. There is an
inseparable link between marriage and childrearing, and it is being fought
out over marriage law. Adoption law is being used to avert this link. The
collateral effects of endorsing homosexuals adopting children are the
disintegration of this link between children and the marriage of their
parents, and it will affect the entire community. The past forty years has
revealed the immense loss of moral capital of nearly two generations of nofault divorce. Children have not benefited in the long run. What will
happen with homosexuality? Will children benefit over the long run? This
102.
See Goodridge v. Dep’t of Public Health, 798 N.E.2d 941, 969 (Mass. 2003). The
Massachusetts Supreme Judicial Court decided this case on November 18, 2003 and held
that same sex partners ought to be legally afforded the benefits of marriage.
103.
In the 1990s, only one piece was published on the issue of same sex marriage, (not
altogether) favoring homosexual marriage, and only one piece published that even
questioned the wisdom of homosexuals adopting children. Wardle, supra note 9, at 837.
104.
See id. at 894-97.
2004] MORAL REALISM AND ADOPTION BY HOMOSEXUALS
665
is a battle between acceptable, better, and what truly is the best. Trends that
have such huge consequences demand extremely careful consideration.
CONCLUSION
The matter of homosexuals adopting children is not about adults. It is
about children. It is about their future. Their future is also the future of our
civilization. Homosexuals adopting children ought not to be an
experiment—particularly an experiment with our children. Normalizing
homosexual parenting via legal adoption places the future of our society in
jeopardy.
The best interests of the child and moral realism require us to place our
children first by looking honestly at the arguments for and against the
adoption of children by homosexual parents. Moral realism clarifies that
some things are morally true whether we choose to believe them or not, and
these truths will be played out in the practicality of the years that follow.
What is sown will be reaped. This article has laid out how the certainty of
moral realism reveals the numerous and tragic detrimental effects that will
be had on children should homosexuals be comprehensively granted the
privilege of adoption. This article has presented the arguments for and
against homosexual adoption. What has become crystal clear is that it is in
the best interests of every child to have a mother and a father who are
married to each other.
Careful discernment is required in any case of adoption, and that is
equally true in the case of homosexuals and homosexual couples adopting
children. The matters decided today reveal a critical link between what
decisions are made now and the face of the future civilization. For the
future of our children, these choices should not be made lightly.
666
NEW ENGLAND LAW REVIEW
[Vol. 38:3