Waiting for Loving: The Child's Fundamental Right to Adoption
| Author | Barbara Bennett Woodhouse |
| Position | Director of the Center on Children and Families, Fredric G. Levin College of Law, University of Florida |
| Pages | 297-329 |
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The title of this article, "Waiting for Loving," has a double meaning. The "Loving" in my title refers to the case of Loving v. Virginia.1 In 1967, the Supreme Court in Loving invalidated a law of the State of Virginia that categorically prohibited marriage between people of different races.2 The plaintiffs, Richard and Mildred Loving-a white man and a black woman-were high school sweethearts3 who had been forced to flee from Virginia after their arrest for the crime of having married a person of the wrong color.4 The plaintiffs went to the Supreme Court to seek the right to live as a legal family in their home state.5 The couple prevailed, making the curiously apt case name "Loving" synonymous with the right to marry.6 According to the Supreme Court, anti-miscegenation laws were unconstitutional on two counts. First, despite their deep historical roots and widespread acceptance, these laws violated the individual's right to equal protection of the law.7 Second, these laws impinged on the fundamental right to marry and to form a family.8
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The Court held that marriage was so fundamental that it was a constitutionally protected liberty under the Fourteenth Amendment of the United States Constitution.9 The State of Virginia could not assert an untrammeled right to decide which individuals would be permitted to enter into this intimate human relationship.10 State marriage laws that substantially interfered with the right to marry would have to be justified by a sufficiently important state purpose.11
This courageous decision had been a long time coming. For decades, the Court had found pretexts to avoid challenging these laws, afraid of the backlash that would follow a ruling on such a socially divisive issue.12
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Meanwhile, interracial couples lived in fear and were prevented from enjoying the rights and responsibilities of a legal marriage. For every couple like Richard and Mildred, who fell in love and formed a family together despite these laws, countless others were kept apart, deterred from forming loving relationships in the first place by the legal barriers and social stigma that they so powerfully conveyed.
As a child growing up in New York in the 1940s, I knew about these laws from overhearing my parents' discussions of them. My parents' best friends, Karl and Nellie Baker, as well as my Aunt Mercedes, had married across the color line. When I think of anti-miscegenation laws and the shadow these laws cast on the families that they touched, I think about the snapshot in our family album of my father and uncles all in World War II military uniform, posing with their proud wives, sisters, and kids. Just by standing on a street corner, even in New York City, these men and women, with their African-American spouses and multiracial children, were exposing themselves to social rejection and animosity. These individuals could not travel to the nation's capital because they would have had to pass through hostile states. Even in the North, I know the discomfort was often palpable, even (or maybe especially) to a child.
Loving is now celebrated as a landmark case and has been extended to laws that barred disabled, indigent, and incarcerated people from marrying.13 Racial equality principles were extended, in Palmore v. Sidoti,14 to bar courts in custody cases from treating social stigma against parents' interracial relationships as a dispositive factor in determining the child's best interests.15 The racial equality aspects of Palmore have been extended to the adoption context in decisions and legislation prohibitingPage 300 the delay or denial of adoptions based on race.16 While families that cross the color line still face special challenges, I am glad to know that a new generation of children born and adopted into interracial families has grown to adulthood with the stability and security of belonging to a legally recognized family unit.17 These children can now take for granted the right to form families of their own.
What does the case of Loving v. Virginia have to do with adoption or illuminating the child's perspective on adoption, the topic of this symposium? Today, hundreds of thousands of children are still waiting for the fundamental right that was secured to adults in Loving-the fundamental right to form a legally sanctioned family bond and the liberty to be free of undue state interference and discrimination in forging one's most intimate relationships. When I say these children are "waiting" for Loving, I mean that quite literally. These children indeed are waiting for the chance to enjoy loving families of their own. They are waiting not only for the Loving legal precedent to be extended to them, but also waiting, pure and simple, for the loving permanent relationships that every child needs in order to flourish.
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The term "waiting children" has a double meaning. It is a term of art in adoption and child welfare policy, used to designate the hundred thousand or more children in state care who have no legal parents and who are waiting to be adopted.18 Each year, many children lose their parents through death, abandonment, termination of parental rights,19 and incarceration. Many of these children are "special needs children."20 When I adopted my son over thirty years ago, these special needs children were called by a less euphemistic name: "hard to place."21 Some children, like my son, were hard to place because of medical disabilities.22 Other children were hard to place because they were too old, were part of a sibling group, or were members of a minority racial or ethnic group.23
In 2003, approximately half a million children were in foster care and were wards of the state.24 In many cases, the state actually terminates the legal relationship between these children and their parents.25 In his autobiography, Malcolm X, who lost his mother to mental illness and grew up in foster care, called himself and his siblings "state children."26
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According to Malcolm X, being a state child meant being at the mercy of an unfeeling and often hostile bureaucracy, and having no family and no home of his own.27
Of course, foster care can be a tremendous boon to a child when his or her family is in crisis or he or she is in danger of serious harm.28 Scholars like my colleague, Martin Guggenheim, have argued, however, that too many children are being permanently separated from their families, and a disproportionate percentage of them are children of color.29 This situation should raise alarm in the hearts of Americans who are committed to liberty. Few situations could be more antithetical to a free society than having thousands of children growing up as wards of the state, deprived of the privacy of living in a family and home of their own, and subject to state intrusion in every aspect of their intimate family relationships.
Adoption, for better or worse, presents a tempting but dangerous opportunity for social engineering.30 As I have argued elsewhere, adoption in the child welfare system provides a mechanism to shift the burdens of children in poverty from the public back to the private sector.31 ThePage 303 Adoption and Safe Families Act of 1997 (ASFA)32 requires state agencies to petition for termination of parental rights once a child has been in state care for fifteen out of the last twenty-two months.33 This reform signaled a shift toward privatizing child welfare and, in my view, "represents a radical turn away" from a long history of "subsidizing the care of poor children."34 ASFA "reduces the role of 'public' fostering of children while incentivizing formation of 'private' adoptive families to take on the parenting role."35
While this policy shift reduces "foster care drift" and promotes permanency for children,36 it may do so at the expense of poor families. Formerly, poor parents encountering housing, marital, economic, or health crises had foster care as a "safety net" to provide temporary substitute care at public expense while they got back on their feet.37 Now, even voluntary placements by good parents in difficult times can rapidly lead to disintegration of a family and permanent loss of family ties.
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Despite my concerns about state and federal policies that treat adoption as the silver bullet for families in crisis, I continue to believe that adoption is clearly in the best interest of thousands of abandoned, abused, and neglected children who cannot safely return to their families and communities of origin. I nevertheless fear that the states' monopoly on legal adoption38 is being misused as a means to convey a particular code of moral and religious values that are unrelated to empirical evidence of the best interests of these children.
During the Supreme Court's 2004 term, a writ of certiorari petition was filed and denied raising such concerns. In the case of Lofton v. Secretary of the Department of Children & Family Services,39 the Eleventh Circuit upheld the State of Florida's categorical ban on adoption by homosexuals.40 In doing so, it rejected challenges based on rights to...
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