SUFFER NOT THE LITTLE CHILDREN1: PRIORITIZING
CHILDREN’S RIGHTS IN CONSTITUTIONAL
CHALLENGES TO “SAME-SEX ADOPTION BANS”
Placement bans that prohibit adoption by gays and lesbians operate to
prevent orphans, particularly special needs children,2 from enjoying the
Copyright © 2011, Tanya Washington.
* Associate Professor of Law, Georgia State University College of Law; L.L.M.
Harvard Law School; J.D. University of Maryland School of Law. I would like to thank my
colleagues at Georgia State College of Law for their support and counsel, my research
assistant Rebecca Lunceford for her attention to detail, and the wonderful editorial staff at
the Capital University Law Review for their patience and skill. Last but not least, I would
like to thank my mother, Cynthia Williams, from whom I learned how to be a good parent
and to my son, Andre Washington Thomas, who inspires me to be one.
1 Mark 10:14 (King James) (―Suffer the little children to come unto me, and forbid them
not . . . .‖).
2 Barbara Woodhouse, Waiting for Loving: The Child’s Fundamental Right to
Adoption, 34 CAP. U. L. REV. 297, 326–27 (2005). Special needs children‘s prospects for
permanent placement are uniquely challenged. Id. They ―suffer disproportionately from
categorical barriers to adop tion. . . . [S]pecial needs children include not only disabled and
older children, but also children of color. These are the ‗toughest children to place in
adoptive homes‘ and they ‗often wait the longest before being adopted.‘‖ Id.
Supposedly, ―in post-racial‖ America, following President Obama‘s election, some
states are considering excluding children of color from the special needs category on the
grounds that their racial identity no longer qu alifies them as experiencing placement
difficulties. See generally David A. Hollinger, Obama, the Instability of Color Lines, and
the Promise of a Postethnic Futur e, 31 CALLALOO 1033 (2008). This exclusion is not
supported by research suggesting that o rphans of color are no longer placement-challenged.
See Special Needs Adoptions: How States Define Special Needs, NATIONAL RESOURCE
CENTER FOR ADOPTION, http://www.nrcadoption.org/resources/prac/SpecialNeedsAdoption.
pdf (last visited Nov. 18, 2010).
Despite the fact that children who are members of racial or ethnic
minorities make up only about 32% of the general population age 18
and under, they represent more than 66% of children waiting to be
adopted. . . . Nine states make n o mention of race, ethn icity, or
minority status in their definitions of special needs. One state considers
―minority background,‖ but only if that, in addition to other special
needs, would prevent adoption without subsidy.
232 CAPITAL UNIVERSITY LAW REVIEW [39:231
advantages of the most beneficial placement option—adoption.3 These
prohibitions constitute an unconscionable and unconstitutional violation of
children‘s rights.4 Despite the substantial and devastating impact of
placement bans on the lives of children waiting to be adopted, the
individual rights of prospective gay and lesbian parents have been the
focus of most equal protection and substantive due process challenges of
these bans.5 The constitutional rights of children, though often asserted as
the basis for separate constitutional challenges,6 have been largely eclipsed
in an analysis of adoption bans that centers on the discrimination these
bans perpetuate against gay and lesbian prospective parents.7 Even the
name by which these enactments are known, same-sex adoption bans,8
highlights the impact on prospective parents and obscures the adverse
The remaining 40 states and the District of Columbia all identify some
type of minority status in their special needs definitions . . . . Id.
3 Co mpare Woodhouse, supr a note 2, at 326 (―In the face of a sho rtage of adoptive
parents, categorical bans actually ensure that some children will never have a family of their
own. . . . According to the United States Department of Health and Human Services, 8,126
children were awaiting adoptions in Florida during the fiscal year 2002.‖ (citation omitted)),
with FLA. STAT. § 63.042(3) (2008) (―No person eligible to adopt under this statute ma y
adopt if that person is a homosexual.‖).
4 See, e.g., In r e Adoption of John & James Doe (Gill), No. 06-CV-33881, 2008 WL
5006172, at *29 (Fla. Cir. Ct. Nov. 25, 2008), aff’d 45 So. 3d 79 (Fla. Dist. Ct. App. 2010).
5 See, e.g., Lofton v. Sec‘y of Dep‘t of Children & Family Servs., 358 F.3d 804, 806,
812 (11th Cir. 2004 ). Recent challenges, however, have asserted child-centered challenges
to placement bans in addition to equ al protection and substantive due process challenges by
prospective parents. See, e.g., Gill, 2008 WL 5006172, at *21–24; Complaint at 3, Cole v.
Arkansas, No. 200-CV-14284 (Ark. Cir. Ct. filed Dec. 30, 2008).
6 See, e.g., Sch. Dist. o f Abington v. Schempp, 374 U.S. 203 (1963) (asserting the
child‘s constitutional right under the Establishment Clause); Payne-Barahona v. Gonzales,
474 F.3d 1 (1st Cir. 2007) (asserting the child‘s right to have b oth parents residing in the
United States); Meador v. Cabinet for Human Res., 902 F.2d 474 (6th Cir. 1990) (asserting
the child‘s affirmative due process right to freedom from unreasonable harm), cert. denied,
498 U.S. 867 (1990).
7 See, e.g., Lofton, 358 F.3d at 806, 812.
8 See Tanya Washington, Throwing Black Babies Out with the Bathwater: A Child-
Centered Challenge to Same-Sex Adoption Bans, 6 HASTINGS RACE & POVERTY L.J. 1,
6 (2009); Dana Rudolph, F lorida Won’t Enforce Same-Sex Adoption Ban, WINDY CITY
TIMES, Sept. 9, 2010, at 4, availa ble at http://www.windycitymediagroup.com/images/
publications/wct/2010-09-29/current.pdf; Same-Sex Adoption Ban Ur ged, EVANSVILLE
COURIER & PRESS, May 12, 2006, at B12.
2011] SUFFER NOT THE LITTLE CHILDREN 233
effects of placement bans on one of America‘s most vulnerable
Despite the moral force of the individual rights argument, it is
challenged by two legal realities: (1) courts have not recognized a
constitutional right to adopt9 and (2) federal courts have not recognized
gays and lesbians as a suspect class entitled to heightened constitutional
protection.10 Child-centered constitutional challenges to placement bans
carry greater constitutional weight because a child for whom the State
assumes custody is entitled to care by the State consistent with the
continued preservation and protection of the child‘s best interests.11 The
State owes no comparable duty to prospective parents.
The ―best interests of the child,‖ which has been recognized as a
―substantial governmental interest,‖ defines the content of the State‘s
fiduciary duty to the child within its care and custody.12 Accordingly, the
best interests of the child should operate as a restraint on the State‘s
exercise of its parens patria e power.13 The Supreme Court recognized
―[t]he State[‘s] . . . duty of the highest order to protect the interests of
minor children,‖14 an acknowledgement that is particularly relevant in the
adoption context where the State is acting qua parent. State action—
9 See Lofton, 358 F.3d at 811 (―Neither party disputes that there is no fundamental ri ght
to adopt, nor any fundamental right to be adopted.‖).
10 See Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004) (―Neither the Supreme
Court nor this court has recognized sexual orientation as a suspect classification . . . .‖).
The Supreme Court has identified only three suspect classes: r acial
status, Loving v. Virginia, Strauder v. West Virginia; national ancestry
and ethnic origin, Korematsu v. United States, Stra uder v. West
Virginia; and alienage, Gr aham v. Richardson. Two oth er
classifications have been identified by the Court as quasi -suspect:
gender, Mississippi Univ. for Women v. Hogan, and illegitimacy, Lalli
v. Lalli. . . . Homosexuality, as a definitive trait, differs fundamentally
from those defining any of the recognized suspect or quasi-suspect
classes. Members of recognized suspect or quasi-suspect classes, e.g.,
blacks or women, exhibit immutable characteristics, whereas
homosexuality is primarily behavioral in nature.
Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (citations omitted).
11 See Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
12 See id.
13 See Santosky v. Kramer, 455 U.S. 745, 766–70, 780−81 (1982).
14 Palmore, 466 U.S. at 433.