If you're involved in a committed same-sex relationship but live in a state that did not traditionally recognize gay marriage, you were likely excited by the recent U.S. Supreme Court ruling legalizing same-sex marriage in all 50 states and the District of Columbia. This ruling will provide millions of couples with means by which they can protect their spousal rights, secure tax and Social Security benefits, and engage in other civil and legal protections afforded to married couples. However, many of the same states that had enacted laws prohibiting same-sex marriage also restricted same-sex couples from adopting (or fostering) children. What effect, if any, will this ruling have on state adoption laws? Do you have any options if you live in a state that does not permit same-sex adoption? Read on to learn more about this changing area of law.
What effect did the Supreme Court ruling have on state laws?
Before this ruling was handed down, many states had legalized same-sex marriage already -- and others, adamantly resistant to this notion, enacted laws limiting marriage to opposite-sex only. The Supreme Court's ruling is now the law of the land, superseding any state laws defining marriage as only between a man and a woman. Although some states are fighting back by allowing clerks to refuse to issue marriage licenses, these practices will likely be stopped soon as couples begin to appeal this denial of civil rights.
What does this decision mean for same-sex adoption laws?
The language of this decision refers to marriage as a fundamental civil right that should be available to all Americans, and extends the Fourteenth Amendment's civil rights protections to same-sex couples seeking marriage. However, this opinion did not specifically address whether adoption was a similar civil right, and therefore had no direct effect on state laws prohibiting adoption by same-sex couples, or adoption by a non-birth parent when a child is conceived through use of a sperm or egg donor.
However, some state's laws prohibiting or restricting same-sex adoption are based on the statutory language prohibiting same-sex marriage. For example, a state may permit adoption only by couples whose marriage is legal in that state -- restricting adoption for same-sex couples who may have been married elsewhere, but whose marriage is not legal under state law. Since the Supreme Court ruling eliminated the power of state laws restricting marriage on the basis of gender, once a couple is legally married, they should face no significant legal restrictions in the adoption process.
What are your options if you're a same-sex couple seeking to adopt a child?
If your state still has restrictions on same-sex adoption, and this language is specific enough that it is not changed by the Supreme Court's ruling, you still have a few options.
If your petition to adopt a child has already been denied, one option is to file a civil lawsuit against the entity blocking or denying your adoption. You may be able to procure assistance with your legal fees and other expenses by partnering with a national lobbying agency designed to protect civil rights. Given the state of case law surrounding this issue, it's unlikely this ruling will be upheld on appeal, and you'll have the legacy of having fought for adoption rights on behalf of all same-sex couples in your state.
However, if you don't want to undergo the time and potential expense of a legal trial, you may want to enlist the services of an adoption agency targeted specifically to gay and lesbian couples. These agencies are familiar with state laws and regulations, and may be able to advise you on some "back door" ways to have an adoption granted. The legal services of a family law attorney may also be able to provide you with advice and counsel.