Suffer Not the Little Children: Prioritizing Children's Rights in Constitutional Challenges to 'Same-Sex Adoption Bans

• Author: Tanya Washington
• Position: Associate Professor of Law, Georgia State University College of Law; L.L.M. Harvard Law School; J.D. University of Maryland School of Law
• Pages: 231-270

SUFFER NOT THE LITTLE CHILDREN1: PRIORITIZING

CHILDREN’S RIGHTS IN CONSTITUTIONAL

CHALLENGES TO “SAME-SEX ADOPTION BANS”

TANYA WASHINGTON*

I. INTRODUCTION

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.

(continued)

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

demographics—orphans.

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.