After a long uphill battle, same-sex adoption is now legal everywhere in the United States. Great steps have been taken in recent years regarding this and other LGBT rights, such as the legalization of same-sex marriage. The nation seems to be at its most progressive point when it comes to the rights of the LGBT community; however, new threats to the right to adopt have arisen. It is possible that recent progress can be undone by new laws that allow private adoption agencies to discriminate against same-sex couples. Even though same-sex couples can legally adopt, that right is being threatened; therefore, the government needs to take action and prevent discrimination against same-sex couples in adoption agencies.
Same-sex couples’ right to adopt was not a large point of interest in the US until the late 1960s and early 70s as more members of the LGBT community were starting their own families (Rudolf). In 1968, a homosexual man named Bill Jones was the first single father to adopt a child in the state of California and one of the first in the US, but a social worker indirectly suggested that he keep his sexuality a secret during the adoption process (Rudolf). In 1978, New York became the first state in the US that did not turn adoption applicants away solely for “homosexuality” (Rudolf). In 1979, a same-sex couple in California became the first to adopt a child together in the US, but it would not be until 1997 when New Jersey ‘became the first state to allow same-sex couples to adopt jointly statewide” (Rudolf). These key events in the history of same-sex adoption paved the way for more progressive actions to come.
Same-sex couples’ right to adopt has progressed far past what it was in the 1970s. One such example is the legalization of same-sex marriage; several states have enforced a marriage requirement for adoption applicants in order to prevent same-sex couples from adopting (Adoption by LGBT Parents), but the legalization of same-sex marriage lessened the significance of this loophole. In June 2015, in Obergefell v. Hodges, “the Supreme Court ruled by a 5-to-4 vote… that the Constitution guarantees a right to same-sex marriage”(Liptak); this meant that adoption agencies couldn’t turn gay couples away if they were married. Because of the Supreme Court ruling, every state in the US has legalized same-sex adoption; the last states that had banned same-sex couples from adopting were forced to allow it. Mississippi was the last state to lift the ban preventing same-sex couples from adopting in 2016 (Karimi). The ban, which was enacted in 2000, was deemed unconstitutional; since same-sex couples were given the right to get married the year prior to the ruling, Judge Daniel Jordan claimed that the ban “violated the ‘equal protection clause’ of the constitution” (Karimi). This leads to today’s current same-sex adoption status, which is the most progressive point in the decision’s history.
Although same-sex couples can adopt today, their right is currently being threatened. There are no laws that explicitly state that same-sex couples cannot adopt, but other bills that would make it extremely difficult for them to do so are making their way to the surface. Bills in several states are beginning to allow adoption agencies to reject potential adoptive parents based on religious beliefs, and this applies to same-sex couples. One such bill is Texas house bill 3859, which lets child welfare service providers “decline to provide, facilitate, or refer a person for child welfare services that conflict with, or under circumstances that conflict with, the provider ’s sincerely held religious beliefs” (House Bill 3859). The reasoning that the bill presents is to “maintain a diverse network of service providers” (House Bill 3859). Other bills, including Mississippi’s Protecting Freedom of Conscience from Government Discrimination Act and Oklahoma’s senate bill titled Children; prohibiting requirement for private agencies to participate in certain placements; prohibiting certain actions based on religious or moral convictions, would also allow faith-based agencies to discriminate against homosexual couples based on their own religious beliefs (bill citation) (bill citation). The fact that the government is letting this happen demonstrates how same-sex couples’ right to adopt is being threatened.
The bills, however, are not the only obstacle that same-sex couples face in the adoption process. As the bills have demonstrated, religious freedom is beginning to be used to deny same-sex couples the ability to adopt. Many same-sex couples also have difficulty pursuing second parent adoptions, or “a legal procedure that allows a same-sex parent, regardless of whether they have a legally recognized relationship to the other parent, to adopt her or his partner’s biological or adoptive child without terminating the first parent’s legal status as a parent” (Adoption by LGBT Parents) ; In 36 states, adoption services still require couples to be married before getting a second parent adoption (Adoption by LGBT Parents). Some same-sex couples also have a hard time adopting children because there aren’t any gay-friendly adoption services near them. A study conducted by Lori A. Kinkler and Abbie E. Goldberg further examines this; the study examined the barriers that same-sex couples face when adopting in small metropolitan areas, and the findings indicate that these couples might have no other option than to go to faith-based agencies who, as mentioned previously, have the ability to turn away same-sex couples (Kinkler and Goldberg). In none of these circumstances was it completely illegal for same-sex couples to adopt, but each scenario presented immense difficulty in the process. The legality of same-sex adoption is without doubt a gigantic step towards LGBT equality, but with these obstacles it is possible for the progress to be undone.
Although there are many difficulties that same-sex couples face when trying to adopt, there is no evidence proclaiming that they are any less fit to be parents than heterosexual couples. A study on the development of children with lesbian mothers concluded that children develop very similarly in lesbian and heterosexual households (Brewaeys et al.); the relationships between the parents and the children were found to be the same in families with heterosexual parents and lesbian mothers (Brewaeys et al.), and the relationship between the children and the social mother in families with lesbian parents was found to be better than the relationship between the children and the father in families with heterosexual parents (Brewaeys et al.). Another study on the subject showed that gender development was not different in children raised by lesbian mothers and heterosexual parents (Kirkpatrick et al.). These studies display the capability of same-sex parents and present nothing that says otherwise; allowing them to adopt would not cause any harm to the children they adopt, and there are no reasonable excuses for adoption agencies to claim that they are unfit to be parents solely because of their sexual orientation.
Preventing same-sex couples from adopting would cause harm, however, because it would affect the average amount of adoptions in the United States. Over 16,000 same-sex couples adopt 22,000 children in the U.S. (Gates), and same-sex parents were also found to adopt about four percent of foster children in the nation (Gates et al.). Although four percent does not seem like a significant portion, it still contributes to the number of children in foster care. If same-sex couples are prevented from adopting, the contributions that they make to the total amount of adopted children are bound to decrease; Therefore, same-sex couples should be able to adopt children in order to prevent the average amount of adoptions in the U.S. from decreasing.
Of course, the intention of the bills was not to decrease the amount of children adopted from foster care in the US. The bills were passed mainly in order to please the faith-based adoption agencies that are fighting for the ability to reject certain adoption applicants based on religious beliefs (House Bill 3859). For this reason it should be no surprise that religious conservatives make up the majority of supporters for these bills. Not only are new bills being made, but old laws are being recontextualized for ulterior motives; the Religious Restoration Act of 1993 is being recontextualized to allow these agencies to turn away potential parents (Do No Harm Act).
The prevention of adoption by same-sex couples has negative effects in several areas. Because it limits the pool of potential adoptive parents, it leaves more children to be left unadopted. More than 20,000 children “age out” of adoption services each year (Lett), and of those children, 25% had been imprisoned within three years of turning 18 (Lett), and over 25% faced homelessness by 21 (Lett). Also, children who are still in foster care are more likely to be living in unsafe neighborhoods and financially unstable households than adopted children (Zill 5). To let these children be raised in foster care for the entirety of their childhood when capable potential parents are being prevented from adopting is irresponsible. Moreover, having this amount of children be raised in foster care for their entire childhood is detrimental to the state that takes care of them; state funds can suffer greatly depending on the amount of children in foster care, but much money can be saved by increased adoption (Zill 3). It is the government’s responsibility to handle these financial matters, and increased adoption would improve state budgets, along with solving the issues with children who aged out of the system. Welcoming all capable potential parents, including same-sex couples, would help solve the problem.
A case study conducted by the University of California further proves the capability of same-sex adoptive parents. The university created a study that compared the cognitive development and behavioral issues of high-risk children adopted by heterosexual couples and homosexual couples. From their findings they concluded that gay and lesbian parents were more likely to adopt children with higher risk factors and children of a different race from their own (Lavner et al.), children in both gay and straight parent households were found to achieve great gains in their cognitive development (Lavner et al.), and that the only significant difference between children with gay and straight parents was that children with same-sex parents were found to have significantly less internalizing problems within the first two months of placement (Lavner et al.). In the end, few differences were found between children of heterosexual couples and same-sex couples (Lavner et al.). All of the findings of this study indicate that adopted children of both heterosexual couples and homosexual couples gained from the adoption, along with supporting the argument that same-sex couples are perfectly capable of adopting and raising children; however, religious adoption agencies are still given the right to turn these couples away because of their sexual orientation, despite the fact that it prevents children in foster care from getting the opportunity to live in supportive homes. The factual evidence does not support these actions, and therefore the government needs to prevent the unnecessary discrimination from occuring.
Some argue, however, that the factual evidence is not where the main focus should be, but rather on the freedom of speech and the rights of faith-based adoption agencies. As Brad Polumbo puts it, faith-based adoption agencies “have First Amendment rights, and their freedom of conscience should be respected, even when their beliefs are politically incorrect or downright discriminatory” (Polumbo). Some argue that, because private adoption agencies are supported by taxpayer money, they should not be able to discriminate against any adoption applicants for The new laws aim to protect the rights of faith-based adoption agencies, not to prevent homosexual couples from adopting; the bills previously discussed would not prevent same-sex couples from adopting completely, but would allow religious agencies to turn them away based on their religious beliefs and still be able to function, which many argue is a good thing (Polumbo). If no harm is being caused, then many argue that it should continue.
Faith-based adoption agencies being shut down would also harm adoption rates, which is precisely what the other side is protesting against. Shutting down faith-based adoption agencies would actually limit adoption and fostering; faith-based agencies have high rates of placing older children and children with disabilities, along with providing assistance to women with unplanned pregnancies (Kao). If faith-based agencies are shut down, then these children will still have to live in foster care. Many such occurrences have taken place during the feud between religious adoption agencies and LGBT advocates; in Illinois, for example, the Catholic Charities were forced to close their doors due to anti-discrimination laws, which “led to the displacement of more than 2,000 children in 2011” (Kao). The placement of as many children in foster care as possible should be the number one priority in this situation, and shutting down religious adoption agencies would be a massive hurdle in reaching that goal.
Religious adoption agencies also argue that the abundance of agencies that are accepting of same-sex couples should allow them to continue denying these couples the ability to adopt from them. Every state in the country allows fostering or adoption by homosexual couples (Kao). Because of this, several argue that giving faith-based agencies the right to decline service to those that would conflict with their religious beliefs would not stop same-sex couples from adopting (Polumbo). As Emilie Kao pointed out, “Almost 40 percent of all adoption agencies, and 83 percent of public agencies, report that they have made at least one adoption placement with an LGBT person” (Kao). Not only is the accessibility of adoption agencies for same-sex couples supported by these statistics, for the amount of adoptions by same-sex couples themselves is proof enough; in 2010, 22,000 adoptions were by same-sex couples, while the number was only 6,500 in 2000 (Kao). In short, letting smaller religious adoption agencies decline to serve homosexual couples does not appear to prevent them from adopting, since there are many other adoption agencies that accept them.
It is not necessary, however, to shut down faith-based adoption agencies over the matter. Closing faith-based agencies would certainly have a negative effect on the amount of adoptions in the US; however, it is not the goal of same-sex couples or lgbt advocates to do so. Adoption is the goal that they are trying to achieve. To counter the argument that same-sex couples always have the means to do so, a study conducted by Lori A. Kinkler and Abbie E. Goldberg proves that this is not the case; the study examined same-sex couples who were trying to adopt in small-metropolitan areas, and findings indicated that it was extremely difficult for them to adopt in these areas. 80% of participants said that they encountered at least one obstacle, and 18% of participants said that they had difficulty finding gay-friendly adoption services near them (Kinkler and Goldberg). If faith-based agencies were forbidden to turn same-sex couples away, the adoption process should have been much easier and more accessible for them, making it more likely for successful adoptions in these areas.
The tension between same-sex couples who wish to adopt and faith-based agencies is still high, and possible resolutions have not yet taken effect. One possible way to end the conflict would be to pass the Do No Harm Act; the act states that its goal is to “amend the Religious Freedom Restoration Act of 1993 to protect civil rights and otherwise prevent meaningful harm to third parties” (Do No Harm Act). In other words, the act, if passed, would limit the aforementioned Religious Freedom Restoration Act’s power by taking away the adoption agencies’ ability to discriminate based on religious beliefs. With this enforced, same-sex couples could be able to adopt at such agencies, thus creating the potential to increase the number of adopted children in the US.
If faith-based agencies refuse this method, Robin Fretwell Wilson, director of the Family Law and Policy Program at the University of Illinois College of Law, proposed an alternative solution. Wilson suggested a compromise that would allow both sides to get a part of what they want. Her plan includes giving money directly to the families who are ready to adopt, thus allowing them to choose an adoption agency that best fits their wants and needs (Friedman). She hopes that her plan will “[ease] the ‘chokepoint’ between LGBT couples and faith-based agencies in communities with a limited number of providers” by distributing funds more broadly. As Wilson stated, “Deciding when, if ever, it is acceptable for providers to refrain from facilitating an adoption will stave off a wave of litigation and years of uncertainty” (Wilson). Whatever the decision may be, action must be taken soon to prevent any more negative effects.
With all this being said, it is safe to say that same-sex couples adopting children is at the very least going to be altered in the years to come. The question is how. With all differing points of view considered, it is hard to determine what the best way to go about this issue is; however, the rights of faith-based adoption agencies should not be used to pardon discrimination against same-sex couples. With the need for more adoptions and the amount of same-sex couples who desire to adopt, a solution should not be difficult to find. All things considered, the government’s choice should be an easy one to make.
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