In honor of pride month, you may be thinking a lot about LGBT legal issues. While same-sex marriage is the hot topic that the Supreme Court plans to make a decision about this week, you may be wondering how opinions about LGBT families and adoption will play into this decision, and how such a ruling will affect the rights of the LGBT community. As is true with other issues surrounding LGBT equality, the adoption laws in each state are different.
When looking at the legalities of same-sex couples’ ability to adopt and what is in the state’s statute, we’re asking two questions:
1) Who is allowed to adopt?
2) Are second parent adoptions allowed?
A couple of things to note are first that the laws are constantly changing, and second that there is vague language in many states’ statutes that allow for judges to make rulings on a case-by-case basis. Let’s take a look at the states where there are some barriers in allowing same-sex couples to adopt:
Mississippi is the only state whose law expressly prohibits same-sex couples from adopting.
Same-sex couples used to be unable to adopt in the state of Utah because the statute says, “a child may not be adopted by a person who is cohabitating in a relationship that is not a legally valid and binding marriage under the laws of this state.” Same-sex marriage did not become legal in Utah until October of last year when the U.S. Supreme Court allowed marriage bans to be overturned in Wisconsin, Virginia, Indiana, Utah, and Oklahoma. Now, same-sex couples can adopt in Utah as long as they are married.
In other states, marriage may actually be an obstacle to adopting. In Wisconsin, for example, same-sex couples are allowed to marry but only an unmarried adult or a husband and wife can jointly adopt. Wisconsin also does not approve second-parent adoptions. There are several other states in which the statute says that any unmarried adult can adopt, but married persons must petition to adopt jointly. These states include North Dakota, South Dakota, Nebraska, Kentucky, Louisiana, Alabama, and Ohio. However, same-sex marriage is not legal in any of these states nor is second-parent adoption meaning that only one parent can legally adopt.
Michigan, Missouri, Texas and Georgia allows for any individual to adopt, but second-parent adoptions are approved only in the lower courts. Approval may depend on the county and the judge. In other words, approval of both parents having legal rights over the adopted child is not guaranteed.
As you can see, same-sex adoption laws are incredibly varied by state. The looming question is, if the court approves same-sex marriage as a federal constitutional right for same-sex couples, how will that affect their ability to adopt? Will certain states, such as Wisconsin, still be able to enforce that only heterosexual married couples be allowed to adopt, and thus deterring same-sex couples from marrying? Will second-parent adoption still need to be a necessary protection in cases where a same-sex married couple is filing to adopt jointly? Will they face other barriers?
Ideally, if the Supreme Court’s decision is to allow same-sex couples to marry, this will be a positive and more inclusive shift toward eliminating all forms of discrimination based on sexual orientation and gender identity in the adoption world and beyond.