Why Adoption is Not Like Marriage: An Amateur's Reply to Professor Woodhouse to Keep Waiting for Loving

• Author: DwightG. Duncan
• Position: Professor, Southern New England School of Law
• Pages: 345-348

Page 345

I appreciate the opportunity to comment on Professor Woodhouse's interesting and somewhat provocative thesis on recognizing a fundamental right to be adopted,¹ as a corollary of which all categorical exclusions of potential parents would be presumptively unconstitutional. Of course, I am not a family law scholar; my real field is constitutional law. But law is not like stained glass, which can only be viewed with appreciation from the inside. Sometimes outsiders can see things that insiders miss, and it is in that hope that I dare comment at all.

I do not think that adoption is at all comparable to marriage, even if they are both creative of a new family that is not dependent on blood but arises through bonds of affection and commitment.² At a visceral level, one can recall the repugnance with which the public greeted the news of Woody Allen's marrying his paramour's adoptive daughter, Soon-Yi Previn.³

Now why is that? I would argue that it is because parenting and marriage are fundamentally different categories, even though they are obviously related. But all relationships are not created equal. One basic difference between marriage and parenting is choice; you choose your spouse⁴ (indeed, the choice is mutual in our Western Judeo-Christian tradition), but you don't choose your parents. From the child's standpoint, which our legal standard of the "best interests of the child" assumes is the appropriate vantage point,⁵ "parents happen." There is no real choice for the child, and I would argue, consequently, no personally assertable right.

Page 346

Thus, categorical barriers to marriage, like a ban on interracial marriage, are and should be highly suspect under the Equal Protection Clause; and the Court in Loving v. Virginia so held.⁶ Because discrimination on the basis of race is the paradigm of a violation of equal protection, I suppose that an outright categorical ban on interracial adoption would be likewise highly suspect. I would argue, however, that a preference for same-race adoptions would and should be constitutional because of the significant, if not compelling, interest in the welfare of the children. I don't think courts were as troubled by these bans in the case of adoption as they were in the case of marriage.⁷ The paternalistic, parens patriae interest in government asserting the best interests of children⁸ is present in the case of adoption but not in the case of marriage.

Don't get me wrong. I am not arguing for the wisdom, prudence, or advisability of categorical barriers to adoption as public policy; rather, that they are constitutional as long as there is some reasonable basis. I think Lofton v. Secretary of the Department of Children & Family Services was correctly decided, although I am hardly impartial, as an expert witness for the government deposed by the ACLU in that case. The rational basis test was applied to Florida's prohibition of gay adoption;⁹ it is reasonable for legislatures to favor mother-father parenting, even if not in a totally consistent way.¹⁰ After all, homosexuals are not a protected class,¹¹ and adoption is not a fundamental right¹²-at least not yet.

What about...