Same-sex couples and adoption policy in the United States

Gay Adoption

Adoption is an important social and legal process whereby children without parents are placed in homes and given full status as members of a family. Adoption goes beyond the sort of temporary placement that is common in foster homes and is seen to serve the needs of the children, to benefit the adoptive parents, and to strengthen society. Adoption for many people stands as the only viable option they have to become parents because they cannot conceive on their own, and yet there are usually far more children in need of adoptive parents than there are parents. Some children are harder to place than others, usually because they are older, and adoptive parents prefer small children as a rule. Children who have certain disabilities are even less likely to find a home, and race plays a role so that minority children are harder to place than white children because thee are more white parents looking to adopt. In the last few decades, the nature of adoption has changed with a broadening of who is accepted to be adoptive parents, allowing for the placement of more minority children in white homes (an issue with controversies of its own), for more single people to become adoptive parents, and in much of the country, for same-sex couples to adopt children. This last type of arrangement has engendered a good deal of opposition from groups opposed to rights for homosexuals, opposed to gay marriage in any form, concerned about the effect such a family might have on the children placed there, and so on. The passage of a law in Florida banning same-sex couples from adopting is the only such law in the nation at the present time, though other states may emulate it if certain activists have their way. The issue raised is whether this sort of ban makes any sense at all, whether the concerns raised have any validity, and whether evidence can be found that same-sex adoptions serve a need, do not harm, and serve the needs of children so placed. Much of the opposition to same-sex adoption is religious in nature or based entirely on suppositions about the harm that might be caused. Research should show the nature of the issue and how it should be decided.

Adoption

Adoption research is a procedure followed in child welfare work. Earlier in the twentieth century, there were calls for research to assist in moving toward a scientific basis for child placement. However, the reality that has developed has not fulfilled this hope. The reason research in adoption has failed is the same reason that adoption itself has succeeded, and that is the near-ideological commitment of adoption administrators, advocates, and practitioners. Barth (1994) notes that adoption has been facilitated greatly by social workers. He'd also points out that certain aspects of the process never change given that social workers have particular biases and preferences about which choices they make. He states that adoptive placements have been affected by shifts in the perceptions of social workers, who at different times in recent decades have held strong preferences for adoptive parents who were married, middle-class or above, infertile and resolved about it, the same race as the adopted child, the same religion as the adopted child, seeking a child just like the adopted child, educated, younger than 40, and kin. Many social workers also take a stand in terms of same-sex parents and adoption, aided in some cases by the law, and in other cases in spite of legal decisions. Adoption requires the development of a permanent adoption plan, the termination of the biological rights of the parents, the placement of the child in a preadoptive home, and the legal transfer of parental rights and responsibilities to the adoptive family. Social workers help develop the plan for adoption and serve to implement the plan as part of the process, which also involves lawyers and others in following through and protecting the rights of all involved.

Chippindale-Bakker and Foster (1996) note the parameters of adoption in Canada and the role of the social worker. There are three routes to adoption in the 1990s. The first is the traditional model of closed adoption placement where there is no contract between biological and adoptive parents and where social workers are responsible for all adoption planning and placement matters. The second form is semi-open adoption, and here the biological parents select the adoptive parents on the basis of non-identifying descriptive profiles. The social worker acts as a facilitator, taking the role of intermediary in the exchange of correspondence. In open adoption, the biological family meets and selects the adoptive family and then the families fully share information and maintain direct contact. The social worker is not required.

Curtis (1990) writes about in-depth interviews and participant observation conducted on how social workers influence birth mothers in the process of pregnancy counseling. The workers themselves appear to believe that they have little or no influence over a birth mother's decision to keep or give up her baby and believe that the decision to do so is largely dependent on the emotional capacity of the individual birth mother to tolerate the loss of the child. The workers recognize that they have the responsibility for seeing to it that the mother understands her position and how she reached the decision to keep or give up her baby.

Social workers are seen to have a particular role when the birth mother is an unmarried teen, and adolescent pregnancy and child rearing in the United States is recognized today as a health and social problem, one that is associated with other social problems, such as reduced educational attainment, underemployment, substance abuse, poor parenting, and welfare dependency. Yet, evidence has been found that professionals fail to initiate adoption dialogue even with teens, and the reason social workers so fail is because they lack necessary knowledge, have a personal belief in the general societal belief that adoption is not the appropriate action to take, believe that the client is not interested, and have preferences for nondirective counseling strategies (Custer, 1993).

Rosenthal and Groze (1994) examine a group of adoptive families involved in special-needs adoptions, referring to adoptions in which the child is older at adoptive placement, in which there is inadequate background information or unrealistic parental expectations, with a rigidity in family functioning patterns, facing low levels of support from relatives or friends, with a child with a history of physical or sexual abuse prior to adoption, where there has been psychiatric hospitalization prior to adoption, or in cases of adoptive placement with new adoptive parents rather than adoption by foster parents. Social agencies must make the effort to develop effective postadoption supports and services for children and families, and problems can ensue when this is not done. The key services to be considered include adequate health coverage, financial adoption subsidy, respite care, parent and child support and activity groups, services to help families plan for their child's future, family preservation services, and adoption-sensitive mental health services.

Social workers provide much of the information of importance in understanding the adoption process and its effects, though the research is still often insufficient to provide the answers required. Altstein et al. (1994) report on research in which social workers across the country reported on 350 families who adopted foreign-born children. Students were trained in interview techniques to gather much of this data. The interviewers reported that they believed that concerned social workers must be aware of their own feelings toward people who are of a different race or ethnicity. The social worker beliefs about preserving race and culture should not be transmitted to the adoptive family. Several students talked of the need for self-awareness as an essential part of professional practice.

Social workers are often faced with treating women who have given up an infant for adoption and who are experiencing unresolved grief. Mental health professionals have to understand the nature of this concern. One of the problems faced by these women has been a lack of social support, and the social worker can serve as a provider of such support when it is needed in order to forestall the grief problems many women experience. The birth mother needs to be helped to talk about her feelings to help her end her grief in a timely fashion (De Simone, 1996).

Rates of adoption vary over time, along with the characteristics of the population of children being adopted. It was reported in 1998 that adoptions of children with special needs had nearly doubled between 1986 and 1996, though overall adoptions dipped slightly in the 1990s. Statistics on adoptions varied from state to state. In 1997, adoptions of foreign-born children reached an all-time high (Wetzstein, 1999).

Census statistics from 2000, the last federal census taken, showed that there were 1,400,000 (1.4-million or 87% of all adoptions) that were domestic adoptions, with 200,000 (or 13% of all adoptions) of foreign-born children. The total number of adoptions in 2000 was 1,600,000. Of this, 190,000 children were adopted from foster care in 1999 and 50,000 children were adopted from public foster care in 2001. Of this group. 50% were male, 50% were female, 38% were White, 35% were Black, and 16% were Hispanic. Adoption statistics are difficult to find because reporting is not as complete as it should be. The government spent $2.6 billion dollars to conduct the 1990 Census, but still it under-represented minorities and categorized children as "natural or by adoption" without differentiating, while special laws were implemented to "protect" and separate adoption affected families. In 1995, a "continuous" census (instead of every ten years) was proposed but has not been implemented. Even the government cannot rely on its most often cited broad official "guesstimate" of "5 to 10 million adoptees in the U.S." Private agency or independent adoptions account for more than 80% of adoptions in a state like California, but these are difficult to track, particularly when they cross state and country borders. In addition, no one knows how many U.S. children leave the country to be adopted abroad (Carangelo, 2007).

Because of the problems with record-keeping, even adoptees and their parents cannot "prove" their biological relatedness nor adoptive status, exacerbated by the withholding of documentation, including relinquishment agreements, true birth records, adoption decrees. The hospital record of birth is treated as "confidential" and withheld from the parties named in them. Medical birth records are often legally destroyed long before an adult adoptee knows where to look for them. Concerns over this provided the impetus for what is now an international Open Records Movement and International Soundex Reunion Registry (ISRR). ISRR maintains a secrecy policy not to reveal a total count on the number of its registrants and claims not to know how many are adopted. The Open Records Movement has also produced a cottage industry of searchers who quietly circumvent state laws to find their own families, to access their own records and to help others do the same. Under the Adoption Assistance and Child Welfare Act of 1980 (PL-96-272), a provision called for statewide tracking systems for children in foster care who received care within the previous twelve months, but the Reagan Administration chose to implement a "voluntary" system that has been inconsistent from state to state. In 1986, Congress passed a law mandating a National Data Collection System for foster care and adoption and included a five-year timetable of steps in the process to insure Federal Regulations in place by the end of 1988 and full implementation by October of 1991, though the implementation date was not met. In 1997, Congress passed the Adoption and Foster Care Analysis Reporting System (AFCARS), requiring states to collect case-specific data on all children in foster care for whom the State child welfare agency has responsibility for placement, care, or supervision. This would include placements by private agencies under contract with the public child welfare agency. As Carangelo (2007) writes,

Until recently, no state legislated mandatory collection of even non-identifying family background and medical information pre-adoption. Adoption disclosure statutes, agency policies and procedures, which differ from state to state, and even from county to county, may permit summarized identifying information to the parties it concerns, usually for a fee and, in highly populated areas, after a long wait. Agency conditions for identifying disclosure include unsolicited mutual consents or confidentiality waivers of parties who may be deceased or out of state and not know of law changes, "confidential intermediaries" (who may prevent contact indefinitely), psychological counseling, court and agency discretion, non-refundable registry fees, intermediary and search fees -- often pocketed without provision of services.

Clearly, statistics on adoption in the country remain unreliable.

The nature of the adopters has been analyzed, based on the data that has been compiled. A survey in 1988 showed that some 2,000,000 women between the ages of 14 and 44 who had ever sought to adopt a child, and of these 1.3-million did not adopt, 620,000 had adopted one or more children, and 204,000 were currently seeking to adopt.

In 1995, 232,000 married women had taken steps toward adopting; 11-25% of couples with infertility problems had taken steps toward adopting in 1996; 12-25% of adoptions, depending on state law, were by single persons, a figure that would include single lesbian and gay adopters with partners (Carangelo, 2007).

According to Flango and Flango (1994), there were some 120,000 adoptions of children each year in the 1990a, a number that remained fairly constant and that is still relatively proportionate to population size in the U.S.

A by comparison, in 1986 http://images.adoption.com/adlog.php?bannerid=5337&clientid=361&zoneid=530&source=&block=0&capping=0&cb=b8ffa8007a7a314c1ae4f1ee2dfcd4b3

104,000 children were adopted, 53,000 of whom were related adoptions and 51,000 of whom were unrelated. Also, approximately 10,000 children were adopted from abroad, bringing the total number of unrelated adoptions to 61,000 (Bachrach, London, & Maza, 1991). The number of children adopted has ranged from a low of 50,000 in 1944 to a high of 175,000 in 1970 (Maza, 1994). The number of adoptions by unrelated petitioners declined from a high of 89,200 in 1970 to 47,700 in 1975, though the number of adoptions by related petitioners remained constant between 81,000 and 89,000 during this period (Maza, 1984).

There are several different types of adoption that can be noted. Public adoptions are those in which children in the public child welfare system are placed in permanent homes by public, government-operated agencies, or by private agencies contracted by a public agency to place waiting children. In 1992, for instance, 15.5% of adoptions (19,753) were public agency adoptions (Flango and Flango, 1994). From 1951 to 1975, the percentage of adoptive placements by public agencies more than doubled from 18% in 1951 to 38% in 1975 (Maza, 1984), a number that has since fallen to approximately 15% to 20% of all adoptions (Flango and Flango, 1994). Private adoptions are those in which children are placed in non-relative homes through the services of a non-profit or for-profit agency which may be licensed by the State in which it operates. An independent or non-agency adoption is one in which children are placed in non-relative homes directly by the birthparents or through the services of one of the following: a licensed or unlicensed facilitator, certified medical doctor, member of the clergy, or attorney. In 1992, there were 47,627 adoptions (37.5%) of this type (Flango and Flango, 1994). The highest percentage of such adoptions was 45% in 1970 (Maza, 1984).

Kinship adoptions are those in which children are placed in relatives' homes, with or without the services of a public agency. Stepparent adoptions are those in which children are adopted by the spouse of one birth parent. In 1992, the plurality of all adoptions (53,525, or 42%) were either kinship or stepparent adoptions (Flango and Flango, 1994). Between 1944 and 1975, the proportion of adoptions by related individuals steadily increased until they constituted over 60% of all adoptions, and since almost all adoptions by related petitioners are handled independently, it is likely that by the 1970's a substantial proportion of independent adoptions were by related petitioners (Maza, 1984).

Transracial adoptions are those in which children are placed with an adoptive family of another race. Such placements may be made by either a public or private agency, or they can be independent. According to the most recent estimates, including intercountry adoptions, 8% of adoptions are transracial (Stolley, 1993). Intercountry adoptions involve children who are citizens of a foreign nation and who are adopted by U.S. families and brought to the United States. This area of adoption has shown a dramatic increase in the past few decades. In 1992, there were 6,536(5%) such adoptees brought to the United States, and in 1997, that number increased to 13,620 (United States Department of State).

The states with the highest number of adoptions are also states with larger populations. In 1992, California had 14,722 adoptions, with New York second with 9,570, Texas third with 8,235, Florida fourth with 6,839, and Illinois fifth with 6,599 adoptions (Flango and Flango, 1994). Estimates are that one million children in the United States live with adoptive parents and that between 2% to 4% of American families include an adopted child (Stolley, 1993).

The need for more adopters is evident from the statistics on foster care in the United States. More than half a million children are in foster care in the United States today, and kost remain in care for more than three years and live in at least three foster homes. Some stay longer and may be placed in seven or more foster homes (Hochman, Hochman, & Miller, 2007, p. 2). Many of these children cannot find adoptive parents and so remain in the system until they are grown.

At the same time, there is often a lack of children thought suitable for adoption, meaning infants and young children. This has caused some pressure for changes to allow a different sort of adoption, one currently prohibited, under which birth parents might benefit financially from placing a child with a family that really wants a child. The system seeks to find homes for as m any children as possible. Posner (1992) cites the legal protection of children and the proper role of the state in relation to children, beginning with the assumption that the state desires to maximize the welfare of all its citizens, including children, and that the state has a stake in the development of the full potential of children once they reach adulthood. The state imposes legal duties on parents to provide care and support for their children, and various social programs point to the fact that there is an underinvestment in children as human capital. The problem Posner sees is the neglected or unwanted child, a problem that needs a solution, and one solution would be the threat of a fine or imprisonment for the parents of the child to assure that they do not neglect that child. Removing children to a foster home is not a real solution because the foster parents have no property rights in the child's lifetime earnings, and though they may be paid by the state to perform their duties, monitoring is a problem in that foster parents cannot be trusted by the state. Many children are indeed placed in foster care, but this is intended as a temporary solution and not a final one. A second solution is to allow the parents to put the child up for adoption, a procedure that allows the child to be transferred from the custody of people not likely to invest properly in his or her upbringing to people more likely to do so. However, Posner sees fewer and fewer children up for adoption because of improved contraception and the decline in the stigma of being an unwed mother, meaning more unwed mothers are keeping their children than in the past. This in itself can be an issue given the poverty statistics for unwed mothers and their families, but that is a separate issue. Posner says that the demand for children to adopt is far greater than the supply, and one reason for this shortage is government regulation, "in particular the state laws forbidding the sale of parental rights" (Posner, 1992, p. 151). He then cites a series of facts demonstrating that there is a market in babies for adoption which is at present a black market, and the fact that this is an underground market adds to the costs incurred by all participants.

Posner says the usual solution to such a problem would be the ending of the price controls that have created the situation in the first place, which would mean "allowing pregnant women to make binding contrasts to give up their children for adoption, with no limitation as to the price specified in the contract" (Posner, 1992, p. 152). This idea would not go unchallenged. First, there is no assurance that adoptive parents who would pay the most money would also provide the child with the best home, though Posner believes that those who value the child most are likely to give it the most care. Second, it can be noted that those most willing to pay a high price for the child might value the child for the wrong reasons, such as to subject it to sexual abuse or otherwise to exploit it. In truth, such objections could apply to any adoption, and monitoring is always required to assure that these problems are not involved. Posner also says the poor would probably do better in a free market than they can today.

Boudreaux (1995) agrees that there is a shortage of healthy white infants today and notes that adoption is currently governed largely by state laws so that birth mothers in all states and the District of Columbia are now barred from selling their parental rights. They can give away those rights, but they cannot sell them. They ae allowed monetary compensation only for out-of-pocket medical expenses for the prenatal care and birth of the child. These regulations also limit the ability of birth mothers and prospective parents to learn about or contact one another, and Boudreaux calls for a change in this system:

Birth mothers should be allowed to contact freely with adoptive parents for the sale of parental rights in infants at whatever price they find mutually agreeable. Allowing such contracting does not necessitate abandonment of other regulations on adoption. Courts will still have to sign off on each adoption, allowing judges to ensure the suitability of adoptive parents (Boudreaux, 1995).

Many disagree with Posner and others about the feasibility or morality of baby-selling, however. In reviewing one of Posner's books, Kristol (1992) notes that Posner addresses the question of how a child's interests could be protected in market of baby-selling simply by noting the inefficiencies and errors in the current highly regulated adoption system. Kristol states that Posner ignores the realities of the issue in his approach. Both Posner and Boudreaux emphasize the degree to which people make economic decisions about having children all the time. Boudreaux (1995) states,

Children are costly in monetary as well as nonmonetary ways. Raising them requires sacrifice. The things sacrificed... are what parents pay for children... The costs and benefits of having children are inevitably weighed against each other, and decisions made accordingly. Surely such decisions are not immoral, unethical, or impersonal because they are made with economic concerns in mind (Boudreaux, 1995).

Boudreaux further states that taking money for an adoption should not be stigmatized any more than the economic decision to have a child, though the two decisions are quite different. He and Posner both see clear benefits to adoptive parents, birth parents, children, and society if their suggestions were followed, arguing their position on economic grounds.

Indeed, as others have noted, there is a need for more adopters to help alleviate the need for older children, children with disabilities or other special needs, children from foreign countries (which often have far more orphaned children in need of homes), and so one. Given this need, the prohibition on same-sex couples as adopters becomes even more problematic and suggests that Florida in particular is substituting the morality of one segment of the population for the welfare of children in need.

Gay Adoption

To a degree, the issue of same-sex adoption has become enmeshed with the issue of gay marriage. The current argument waging over gay marriage is just one of many where one side claims to be supporting the value of the traditional family and claiming legal sanction for doing so, while the other points out that the definition of family has been expanding for some time and that a more expansive definition is only right in a pluralistic society. In truth, the law as well has been evolving in this direction for some time, though with resistance at every step. Those seeking a more rapid pace of change point out that courts and legislators have an unrealistic view of the family in American life and that this view no longer reflects reality. Many of those same legislators and courts hold that the law should be normative, that the vision of family it holds out should stand as an example of what the people want rather than only of what they actually have. The result, though, is to perpetuate an unrealistic view of family long after it has ceased being dominant.

While both gay marriage and gay adoption are opposed by many groups in the United States and have been the subject of much argument in recent years, surveys show greater acceptance of both than opponents would like to believe. A survey by the Pew Research Center for the People and the Press (2006) finds that public acceptance of homosexuality has increased even though it remains a deeply divisive issue. Some 51% of Americans continue to oppose legalizing gay marriage, a number that has declined significantly from 63% in February 2004. The survey shows that opposition to gay marriage has fallen across the board, with substantial declines even among Republicans. The poll also shows less opposition to gays serving openly in the military and a greater public willingness to allow gays to adopt children, with 46% supporting gay adoption, up from 38% in 1999. The survey shows that the balance of public opinion on the issue of gay adoption has shifted significantly, though the public remains divided about evenly on the question. The survey also shows that the partisan gap over this issue has grown substantially as Democrats and independents have become more supportive of allowing gay adoptions while Republicans remain mostly opposed. The findings are that 55% of Democrats favor letting gays and lesbians adopt children, as do 52% of independents, while just 30% of Republicans take this view. The survey found a dramatic difference of opinion over gay adoption within both party coalitions as well so that by nearly four-to-one (77% to 20%), most conservative Republicans oppose allowing gay adoption, while moderate and liberal Republicans are divided almost evenly (48% oppose, 43% favor). For the Democratic Party, liberal Democrats accept that gay adoption should be allowed (76% vs. 19% who are opposed) while conservative and moderate Democrats are split evenly (46% favor, 49% oppose). The strongest opposition comes from white evangelical Protestants, so that 75% say this is unacceptable while 22% approve, virtually unchanged from 1999. Over the same period, the balance of opinion among Catholics has shifted notably so that currently 55% favor allowing gays and lesbians to adopt while 37% are opposed, compared to the earlier era when 50% of Catholics opposed this idea while 45% were in favor. Taking age into account, younger people are still the most open to the idea of gay adoption as most people under age 30 favor allowing gay adoption (by a margin of 58% to 38%) while most people 65 and older are opposed (by a 62% to 32% margin). Those between 30 and 64 are divided almost evenly.

Still, the sort of action taken in Florida to ban gay adoption has been introduced in some sixteen states. Florida has had such a ban since 1977, though gays and lesbians can be foster parents. In Mississippi, gay couples cannot adopt, but gay singles can. Utah has a law that bans all unmarried couples from adopting children, which would include gay couples without so identifying them. In Massachusetts, the Catholic Church has sought an exemption from state anti-bias laws so that the church can bar gays from adopting through Catholic social service agencies (Stone, 2006).

The law in Flordia dates back to the campaign of Anita Bryant to over-turn Dade county's gay rights law. Bryant claimed that gays and lesbians were child-molesters and convinced state senators to vote for a ban on gay adoptions. The law has been challenged several times but has not been overturned. Gay adoption can be difficult even in sats where it is not banned. For one thing, while some states permit single people to adopt, others discourage it. Since gays are not allowed to marry in most states, it can be difficult for gay couples to adopt a child. In Vermont, which has

Civil Unions, both parents have equal rights in adoption cases. One of the problems with the position of some opponents is that while they hold out the traditional nuclear family as an ideal, it is more and more an ideal that is not being reached. Today, most children in the United States do not live with two married parents, and according to the 2000 census, only 24% homes are composed of a married mother and father with children living at home. In Florida, the court argues that children are better off raised in a two-parent heterosexual household, even if this is the minority status in the country. In truth, though, scientific studies show that children who grow up in one or two-parent gay or lesbian households do just as well emotionally and socially as children whose parents are heterosexual (Belge, 2007, p. 2). This ignores the fact that for many of these children, this arrangement is simply not an option.

The effort by Anita Bryant involved a religious element as she condemned homosexuality as immoral and "against God's wishes." Her organization, Save Our Children, claimed that gays were converting children, which is one reason she turned her sights on Florida's adoption laws. Her reasoning has been followed by others: "Since homosexuals cannot reproduce... they must recruit and freshen their ranks." Bryant fanned the flames of anti-gay hysteria and helped convince the Florida legislature to pass a law that barred gays from adopting children (Mariner, 2004).

Brooks and Goldberg (2001) find that the number of children in adoptive homes is increasing and that the number of prospective adoptive parents has been decreasing. The authors suggest that one way of increasing the pool of potential adoptive parents is to allow same-sex couples to adopt. They also note the oposition to this idea and ascribe much of it to the belief that gays will mistreat the children in their charge. The authors note that there is a lack of empirical studies on gay and lesbian adoptive and foster families but that there is a good deal of research on gay and lesbian biological families and that this data can serve to show how well such parents do at rearing children. There are as many as three million gay fathers and five million lesbian mothers in the country today who are parents to some 14 million children. Several studies show that the parenting ability of gays and lesbians demonstrates that "homosexuality is compatible with effective parenting" (Brooks & Goldberg, 2001). The authors cite other studies that show this to be the case. A study by Bigner and Jacobsen (1989) compared 33 gay men with 33 heterosexual men and determined that the two groups had differences in approach, philosophy, and type of parenting but that the men were still similar in their overall parenting abilities and skills. In a second study measuring parenting style and orientation to fathering, Bigner and Jacobsen (1992) determined that gay and heterosexual fathers were more similar than different in terms of their responsiveness to hypothetical child behaviors and in their attitudes toward the fathering role. Scallen (1981) found no significant differences between 2o gay fathers and 20 heterosexual fathers in terms of paternal problem solving, emphasis placed on recreation, and the degree to which autonomy was encouraged, though he did find that gay fathers were more likely to endorse paternal nurturance and less likely to emphasize economic support as a central aspect of fathering behavior. They were also less traditional in their overall approach to parenting and had a substantial psychological investment in the paternal role. They also showed a significantly more positive self-assessment of their performance in the paternal role than heterosexual fathers. Studies of lesbian mothers show that they are as child oriented, warm, confident, nurturing, and responsive as heterosexual mothers (Golombok, Spencer, & Rutter, 1983; Miller, Jacobsen, & Bigner, 1981; Mucklow & Phelan, 1979; Tasker & Golombok, 1995). Research further suggests that lesbian mothers are more concerned than heterosexual single mothers that their children have contact with male role models (Finkelhor & Russell, 1984; Golombok et al., 1983; Tasker & Golombok, 1995).

Brooks and Goldberg (2001) also note that in spite of all the evidence, it is believed that in the child welfare services system there is a presumption that "gay men and lesbians are unfit to raise adopted and foster children. Our data suggest that solely because of their sexual orientation, gay and lesbian prospective adoptive and foster parents experience considerable scrutiny of their parenting ability. Both staff and focus group participants felt the overscrutiny of gay men and lesbians was unjustified and that sexual orientation was less important than other factors affecting the appropriateness of a particular adoptive or foster home" (p. 147). At the same time, staff report that there is a lack of clear guidance on the issue from local and state departments of social services. The lack of a written policy often means the use of an informal policy that guides such placements, perhaps influenced by other laws and policies. In practice, this can mean a convoluted system intended to get around perceived obstacles:

Several staff expressed concern over the manner in which the agency's attitude toward placements with gay men and lesbians conflicted with state policy. According to the policy of the state in which this study was conducted, two individuals cannot jointly adopt a child if they are not legally married. Therefore, counties cannot accept a homosexual couple as a legal entity (because there is no way for the homosexual couple to be married). Instead, staff participants disclosed, a child welfare worker can conduct an adoption home study for each member of a gay and lesbian couple; the county then will submit one application for both prospective parents. The application is automatically denied, and a single application for one of the prospective parents is resubmitted. After granting the adoption to the first parent, the judge may then allow the second member of the gay or lesbian couple to become the joint adoptive parent. To receive a state or federal adoption subsidy, however, the couple must choose one parent as the primary parent (p. 147).

In some cases, of course, this can lead to legal problems later and may deny one parent any rights in the case of a breakup.

Some recent legal rulings suggest that the ban on gay marriage may not serve as a way to deny gay adoption, as some states have been doing. In Mississippi, officials refused to recognize an out-of-state adoption by a lesbian couple because the state does not recognize gay relationships. However, the court ruled that the state board of health had to provide an amended birth certificate for their Mississippi-born child, whom they adopted in Vermont, recognizing the rights of the child if not those of the adoptive parents. Legal experts say this ruling will strengthen the rights of gay parents across the country:

Although some states have tried, none has passed the equivalent of a "defense of adoption act" banning the recognition of adoptions by gays in other states. And that's primarily because of the disruption such a law would cause in the lives of so many children, experts say. In the Mississippi case, Lambda Legal Defense and Education Fund, which represented Goldstein and Perdue, used a historically successful argument: that adopted children are entitled to equal protection under the state constitution (Caldwell, 2003, p. 38).

Another reason why the law is changing is that states have been seeking to reduce budget costs and so have been pressing for permanent homes for children now remaining in the foster care system. This means that most states can no longer afford to refuse to recognize the right of gay people to adopt. California, Connecticut, and Vermont have passed pro-gay adoption laws, and courts in half of all the states have approved second-parent adoptions by gay people. Only Florida bars all gay men and lesbians from adopting, and Mississippi and Utah bar same-sex couples from adopting.

Changing Attitudes

Much of the scientific evidence showing that the stereotype is false and that most of the damage envisioned by opponents of gay adoption is illusory has been cited above. The issue of the validity of non-heterosexual family type relationships started in the 1970s in Britain and the United States, based on controversies over child custody battles involving lesbian mothers. These controversies would also shape homosexual political action after that, contributing to a wide change in intimate life centering on what constitutes family values (Weeks, Heaphy, & Donovan, 2001, pp. 18-19).

The sort of open ban in Florida was the product of completely false views about homosexuality and the effects gay parents might have on children. These ideas have been countered by research since, but much of the Christian right clings to these outmoded ideas as absolute truth that cannot be denied by any evidence to the contrary. Some claim a biblical rationale for this view, while others simply repeat longstanding attitudes about gay people and what they may be like. The policy in Florida, like that in some other states, is irrational on its face, allowing gay people to be foster parents but not allowing them to adopt children legally. Such a distinction makes no sense, and the pretense that the two types of parenting are that different is fiction. Given the claim that the state is concerned with stability for these children and that such stability is more likely for adoptions than for foster care, placing children in gay homes only for foster care might be seen as a way of assuring that gay parenting appears less stable, though it is not clear that legislators in Florida have thought the matter through that thoroughly.

As attitudes have been changed throughout the country, the insistence of those becoming a minority that their prejudiced view must prevail is less and less tenable, though the courts addressing the Florida issue have so far offered no relief.

In 2005, the issue reached the U.S. Supreme Court, which refused to hear the appeal and so effectively upheld the Florida law. The case was Lotton v. Kearney [157 F.Supp.2d 1372 (2001)], and this was an appeal of a ruling by the 11th Circuit Court, which was a split decision that denied a request to rehear the original case. The appellants stated that the state of Florida had hired a private firm to handle the case and had based its argument in court on other than factual evidence. One of the groups supporting the appeal notes that there are more than 5,000 children in Florida who cannot find an adoptive family and that this ban is part of the problem (Stelzer, 2005).

This case involved three families, all headed by gay dads. Steve Lofton, a stay-at-home father, and Roger Croteau are raising five children: Frank, 14, Tracy, 14, Bert, 10, Wayne, 8, and Ernie, 5. Frank, Tracy and Bert have been with Lofton and Croteau since they were infants, so that this the only family that they have ever known. Because of Florida's ban, they may be removed from this home, and the state has been actively searching for a home for Bert, who was born HIV-positive, because he no longer tests positive and is now considered "adoptable." The second family is headed by Doug Houghton, the legal guardian of an 11-year-old boy since the boy was 4. The boy's biological father asked Houghton, a nurse, to care for him because he could not, and Houghton is now seeking to adopt the boy, supported by the boy's biological father. The state opposes this.

The third family is that of Wayne Smith and Dan Skahen, who have raised three foster children and applied to be adoptive parents. They were rejected by Florida based on the ban (the Human Rights Campaign, 2007).

Other cases have also been brought. Three were brought since 1990, all lawsuits asking for the gay adoption ban to be overturned. In 1977, a judge declined to do so, stating, "If the state Legislature chooses to allow children to languish in foster care... instead of opening the doors to homosexual households, it has that authority." The ACLU filed the suit over Lofton v. State in May 1999, and a federal judge in Miami in 2001 decided for the state. The decision was appealed in 2002 and rejected by the 11th Circuit Court of Appeals, leading to the appeal to the Supreme Court, also rejected (the Human Rights Campaign, 2007).

The ACLU notes that Florida's ban is the toughest law on the issue in the country, and the outcome in the Lofton case again shows how irrational the law is on the subject. While supporters of the law claim they are only protecting the children, they are in fact harming many of these children by either keeping them from having adoptive homes at all or by removing them from the only home they have ever known. They are doing so with no evidence that any harm is being done or would be done if the children are adopted. As noted, these children could remain where they are if they were merely in foster care, and the state would have to pay for that placement. If the children are adopted, the state would not have to pay, and the children would be in a more stable situation than they will be if moved around as the state wants.

The people involved in the Florida case sued under a similar case before the U.S. Supreme Court, Lawrence and Garner v. Texas [539 U.S. 558 (2003)], a case in which two Texans were arrested and fined for violating the state law against sodomy between same-sex partners. In this case, the police were called to Lawrence's house under the auspices of a weapons disturbance and found two men engaging in sexual intercourse:

Ultimately, the Supreme Court ruled that the constitution protects the right of all persons, including homosexuals, to decide what kind of sexual activity to engage in within their private lives. In other words, a state ban on specific sexual conduct is unconstitutional because it encroaches on a personal and intimate decision that people should be able to make without the intrusion of government (Callahan, 2007).

In the Florida case, the plaintiffs thought that this Texas case would serve as a strong justification for gay adoption. The Supreme Court has asserted that all persons have the right to be free from intrusion by the state into decisions regarding sexual conduct, and they believed that this privacy should be extended to adoption. No court has accepted this argument to date (Callahan, 2007).

Gay rights groups were disheartened by this decision, while many right-wing Christian groups saw it as a sign of what was to come. The latter believe that this shows that the courts will not give gays more rights than they have today, though these groups may not be noting how legislatures across the country are changing the law and creating more rights for gays, including the right to adopt children. In some cases, this can also lead to irrational outcomes, as in Mississippi.

The plaintiffs originally were somewhat optimistic because the 11th Circuit Court had split 6 to 6 on whether the full court should rehear the decision by a three-judge panel. Another irrational element in the Florida law is that the original law contained a preference for married couples, a provision that was repealed in 2003. The outcome has been that single people can now adopt in Florida, which also means that a single gay person could adopt while a gay couple cannot. The Supreme Court does not give a reason why it rejects a case, and this has meant that different analysts have suggested different reasons for the outcome. One analyst believes that the fact that the Florida law is unique in the nation might be why the Supreme Court did not take an interest. Other suits have been filed in different states to challenge limitations on the placement of children in gay homes, some with better success. In Arkansas in 2005, the ACLU brought a suit and had a state trial judge strike don a law prohibiting the placement of foster children in a household with a gay adult. Arkansas announced it would appeal (Greenhouse, 2005).

The Changing Family

One arm in the rational offered by those supporting a ban on gay adoption is that allowing gay adoption would be an attack on the traditional family, though as has been noted, the nature of the family has changed so that the traditional family is the minority. Those seeking to elevate the traditional family to a sacrosanct position are really trying to revive what they believe existed in the past and what they believe is necessary for social order. In truth, though, the statistics on the family show that this is a losing fight. Single parents today account for 27% of family households with children under 18. more than two million men are the primary caregivers for children under 18, and this is a 62% increase since 1990. Half the children in the country will live in a single-parent household at some time in their childhood. One-third of the children born each year are born to unwed parents, and the number of single mothers has increased to ten million by 2000.

Conclusion

The public seems to be changing more rapidly than the law, though much of the country is catching up with laws that give more rights to gays. Adoption laws are one of the areas of change as states are opening the way for more people to become adoptive parents, in part as a way of reducing the costs of foster care for the states. Adoptions by gay couples remains a point of contention, though many states that do not allow such adoptions do allow gay couples to be foster parents. The laws on this issue are clearly irrational and contradictory, and they should be changed to reflect the more liberal views of the public today. Only Florida bans all adoptions by gay couples, though Florida also allows gay couples to be foster parents. Legal challenges to this law have failed to date, but there are certain to be more such challenges, one of which may lead to a different outcome.