Georgia's Children on Our Minds - Nicole Sheppe

• Publication year: 2004

Comment

Georgia's Children On Our Minds . . .

Today a child who receives proper nutrition, adequate schooling and supportive sustaining shelter is among the fortunate, whatever the source. A child who also receives the love and nurture of even a single parent can be counted among the blessed . . . . There is no reason in law, logic or social philosophy to obstruct such a favorable situation.¹

I. Introduction

Although there is not a published opinion addressing same-sex couple adoption in Georgia,² it is currently a hot issue in many state courts and, most recently, in the Eleventh Circuit.³ On January 28, 2004, a unanimous three-judge panel of the Eleventh Circuit Court of Appeals declined to extend the reasoning of Lawrence v. Texas⁴ to adoptions by homosexual couples.⁵ Specifically, in Lofton v. Secretary of the Department of Children & Family Services,⁶ the Eleventh Circuit upheld a Florida statute⁷ prohibiting homosexuals from adopting children.⁸

The 1977 Florida statute at issue in Lofton is unique because it provides for an explicit ban on adoptions by homosexuals.⁹ The statute states, "[n]o person eligible to adopt under this statute may adopt if that person is a homosexual."¹⁰ Most state adoption statutes, including Georgia's, while not specifically providing for homosexual adoptions, do not explicitly ban them.¹¹ In addition, the American Bar Association ("ABA") does not support a complete ban on homosexual adoptions, and its House of Delegates in February 1999 adopted a policy to support laws allowing homosexuals to adopt when the adoption is in the best interests of the child.¹²

Until Lofton, the decision in Lawrence, which overturned the Supreme Court's 1986 decision in Bowers v. Hardwick,¹³ was largely viewed as a victory for the homosexual community.¹⁴ This feeling gathered momentum after a November 2003 decision by the Massachusetts Supreme Court in Goodridge v. Department of Public Health.¹⁵ In Goodridge the court cited Lawrence and struck down a state ban on marriage licenses for same-sex couples.¹⁶

However, the Eleventh Circuit took a different approach with respect to Lawrence and concluded that the Supreme Court's ruling granted no fundamental right to homosexual sex.¹⁷ The court concluded "that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right."¹⁸ The court also emphasized the factual differences between Lawrence, which dealt with a criminal law, and Lofton, which dealt with a matter of "statutory privilege."¹⁹ Specifically, the court stated that adoption is a privilege and that a state has the right to set standards for potential adoptive parents.²⁰ Despite the decision in Lofton, the plaintiffs plan to ask for a rehearing before the three-judge panel or an en banc rehearing, or petition the United States Supreme Court for a writ of certiorari.²¹

After the recent court decisions concerning same-sex adoption in the Eleventh Circuit, as well as in neighboring states, one may ask where Georgia stands on this issue. This is a difficult question to answer, but one that merits probing. The literal wording of Georgia's adoption statutes does not explicitly provide for step-parent adoption, which could allow the adoption by two same-sex partners jointly.²² However, it is also clear that at the trial-court level adoption by homosexual couples is permitted on a random basis depending on the county in which the petition is filed and the judge presiding over the individual case, with the majority of successful petitions in the Atlanta area.²³ Even under a literal reading of the Georgia adoption statutes, homosexuals as individuals (not couples) could potentially adopt a child.²⁴ However, there is currently no uniform manner to analyze the benefits or drawbacks to homosexual individuals in the application of the best-interest-of-the-child standard, which is the policy underlying these statutes.²⁵

Same-sex adoptions have the potential to greatly impact children. For example, when children are denied adoption by one or both parents who are members of the same sex, the children lose more than stability. The children are denied the rights of inheritance and succession, medical insurance, life insurance, the capability of having one or two legal guardians who can sign for emergency medical care, and the benefits of educational funding that two parents can jointly provide.²⁶ Although there are legal documents, such as wills, available to parties to address some of these issues, every situation that may arise as a parent cannot be anticipated. It is a heavy burden to expect parents to contract for every right available automatically to other parents. For example, in the event of an emergency, a de facto parent needs the ability to consent to medical care when a child's biological parent or legal guardian is not present. Therefore, a ban on same-sex adoption without an inquiry into the specific facts of each case and each child's situation can potentially have unexpected consequences.

If a person or couple is willing to provide the aforementioned benefits to a child, is it fair to deny these benefits because of the potential parents' sexual preference, especially if this behavior is not proven to have negative effects on the child? Further, is it worse having two same-sex parents or no legal parents? Is it fair to permit adoption to some children and not others? Until the Georgia General Assembly addresses these issues through a new or amended adoption statute, these are questions that Georgia courts need to consider. The purpose of this Comment is to serve as an objective analysis of the current adoption law in this state and to help formulate a more cohesive application of Georgia's adoption law with respect to same-sex couples.

II. Historical Analysis of the Law in Georgia

Many adoptions continue to be granted at the trial-court level, but there is no published case that directly addresses same-sex adoption in Georgia. Therefore, it is helpful to examine cases dealing with homosexuality in the context of child custody and child visitation, and to consider other, more general laws pertaining to homosexual conduct in order to formulate a broad picture of the current published law regarding homosexuality in this state. There appear to be two lines of cases in Georgia: (1) those that relied on Bowers, which held that private homosexual conduct received no federal constitutional protection,²⁷ and (2) those that departed from the reasoning in Bowers.²⁸ Many Georgia cases were decided before the Georgia Supreme Court decision in Powell v. State,²⁹ which declined to follow Bowers, and before the recent United States Supreme Court decision in Lawrence, which overruled Bowers.³⁰ Older cases in Georgia relied heavily on the reasoning that sodomy was a crime in Georgia, and therefore same-sex couples were given little if any protection by the law.³¹ However, because the law is changing rapidly in this area, the courts do not have ample precedent to rely upon when deciding cases dealing with these issues. The case law appears to be piece meal, determined on a case-by-case basis, and often inconsistent. In this Section, I will discuss Bowers and all relevant cases, ending with the most recent Georgia decisions dealing with homosexuality, and especially those regarding homosexuality and children. In a later Section, I will discuss same-sex adoption cases from other jurisdictions, including Florida, that might serve as persuasive authority when a same-sex adoption petition reaches the appellate or supreme court level in Georgia.

A. Bowers v. Hardwick

In Bowers v. Hardwick,³² the United States Supreme Court, in June 1986, held that the right to privacy in the United States Constitution did not protect private sexual conduct between consenting homosexual adults: The Constitution did not "extend a fundamental right to homosexuals to engage in acts of consensual sodomy."³³ Hardwick was charged with violating a Georgia statute criminalizing sodomy for committing sodomy with another adult male in the bedroom of his home. The prosecutor decided not to pursue the matter, but Hardwick brought suit in United States District Court, challenging the constitutionality of the statute. The court granted the defendant's motion to dismiss for failure to state a claim. The court of appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.³⁴ However, the United States Supreme Court held the Georgia statute constitutional.³⁵ The Court noted that none of the fundamental rights previously announced by the Court involving family relationships, marriage, or procreation bore any resemblance to the right to private conduct between consenting homosexual adults.³⁶ Further, the Court stated that "[a]gainst this background, [in which many states continue to criminalize sodomy] to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."³⁷ Therefore, the Court noted that there should be great resistance to expanding the reach of the Due Process Clause to cover new fundamental rights.³⁸ The Court opined that it was irrelevant that the homosexual conduct in this case occurred in the privacy of Hardwick's home.³⁹

In March 1996 the Georgia Court of Appeals decided In re R.E.W.,⁴⁰ which concerned a homosexual father who challenged an order from a juvenile court refusing to allow him unsupervised visitation with his daughter.⁴¹ Pursuant to a custody agreement, the father had supervised visitation in the child's mother's home. Further, he was involved in a monogamous homosexual relationship for four years, but did not believe his daughter's best interest would be served by informing her of the sexual nature of his relationship. The father stated that he would actively conceal the sexual aspects of his relationship from his...